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TMI Blog2022 (7) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... n or order appealed against, is not at all curtailed by Section 2 (1) of the Act and thus, the Commissioner (Appeals) has not exceeded his jurisdiction while modifying the order passed by the adjudicating authority . In the order dated 27.08.2018, the Commissioner (Appeals) has held that the import of gold was not prohibited under the Foreign Trade Policy or any other law for the time being in force and, therefore, there is no sufficient ground for absolute confiscation of the gold. This finding has not been reversed by the Tribunal as the Tribunal has affirmed the order passed by Commissioner (Appeals). Nothing has been placed before this Court to establish that this finding of the Commissioner (Appeals) is wrong or erroneous and that gold falls within the category of prohibited goods - Therefore this appeal is decided on the factual premise that Gold does not fall within the category of prohibited goods . Section 125 of the Act deals with confiscation of two separate categories of goods. It provides that in the case of goods, the importation or exportation whereof his prohibited under the Act or under any other law for the time being in force, the Officer adjudicating may give an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bars were recovered from the specially designed cavities made in the shoes of the respondents. The gold bars were found to be weighing 4,076 grams and valued at Rs.1,09,98,018/- only. On 30.12.2015 the Additional Commissioner, Customs (P.) Commissionerate, Lucknow, had passed an order for absolute confiscation of the seized gold bars and some foreign currencies recovered from the respondents. Further a penalty of Rs.10,00,000/- was imposed on each of the respondents. 4. The respondents filed an appeal against the aforesaid order and the Commissioner (Appeals) partly allowed the appeal by means of his order dated 27.08.2018. The Commissioner held that the gold is not a prohibited item as its import was not prohibited under the foreign trade policy or in any other law for the time being in force. The only offence made out in respect of the Gold bars is its non-declaration in the disembarkation slip in contravention of Section 77 of the Act rendering the same liable to confiscation under Section 111 (1) of the Act. The Commissioner (Appeals) held that there is no sufficient ground for absolute confiscation of the gold and he gave the respondents an option to redeem the confiscated g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed gold on redemption of fine and also by reducing the redemption fine?" 10. However, during submissions made in support of the appeal, Sri. Dipak Seth, the learned counsel for the appellant has abandoned the second substantial question of law and he confined his submissions to the first substantial question of law framed by this Court. 11. Before proceeding to analyze the submissions made on behalf of the contesting parties, it would be appropriate to go through Section 125 of the Act, which reads as follows: "125. Option to pay fine in lieu of confiscation (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit; PROVIDED that where the proceedings are deemed to be concluded under the proviso to sub-section (2) of section 28 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that in the case of Commissioner of Customs Airport, Mumbai Vs. Alfred Menezes (supra) the discretion was exercised by the adjudicating officer and it was confirmed by the appellate authority and, therefore, the High Court had refused to interfere in the matter, whereas in the instant case the adjudicating authority has refused to release the goods and the Commissioner has reversed the order of the adjudicating authority whereby he had exercised his discretion. 14. Sri. Seth has submitted that although the expression "officer adjudging" has not been defined in the Act, it refers to the "adjudicating authority", which is defined in Section 2 (1) of the Act as follows: - "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, Commissioner (Appeals) or Appellate Tribunal." 15. Sri. Seth has submitted that since the Commissioner (Appeals) stands excluded from the definition of the adjudicating authority, he could not exercise any discretion to give an option to pay fine in lieu of confiscation and such discretion could only have been exercised by the officer adjudging. 16. Per contra, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 125 of the Act. 19. Having given our thoughtful consideration to the rival submission made on behalf of the parties, we find that although as per the provisions contained in Section 2 (1) of the Act, the Commissioner (Appeals) or the Appellate Tribunal are not included within the definition of the term "adjudicating authority" and, therefore, they cannot exercise the powers vested in the "officer adjudging" but the power conferred by Section 128-A (3) (a) of the Act to "modify" the decision or order appealed against, is not at all curtailed by Section 2 (1) of the Act and thus, in our considered opinion, the Commissioner (Appeals) has not exceeded his jurisdiction while modifying the order passed by the "adjudicating authority". The submission of Sri. Seth that Section 2 (1) if the Act is a special provision and Section 128 A is a general provision, is fallacious is this case for the reason that provisions of the entire Act have to be taken into consideration in their entirety to decipher the exact scheme of the Act as contemplated by the Legislature. 20. Moreover, we find that in the order dated 27.08.2018, the Commissioner (Appeals) has held that the import of gold was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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