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TMI Blog2022 (8) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... corded in Mahazar, dated 07.11.2019 within two weeks from thereon. It is for the respondents to proceed with the adjudication proceedings to save the revenue to the Nation. The adjudication proceedings shall be completed within a period of three months from the date of receipt of a copy of this order. Petition allowed. - W.P(MD).No.2062 of 2020 And W.M.P(MD).Nos.1733 and 1734 of 2020 - - - Dated:- 2-8-2022 - Honourable Mr.Justice M.Nirmal Kumar For the Petitioner : Mr.A.K.Jayaraj For the Respondents : Mr.R.Aravindan Standing Counsel ORDER The petitioner, who is a Malaysian citizen running Restaurant and having tourist taxi in Malaysia came to India with his wife and son to attend the marriage of his relative in Ramnad on 05.11.2019. He arrived at Trichy Airport at 11.30 P.M., on 05.11.2019 by Flight Air Asia AK-29. At that time, the petitioner wearing gold chains, gold bracelets and ring. After completing the immigration formalities, when the petitioner moving to customs table, the petitioner pulled by two officers and forced the petitioner to remove the gold jewelleries, which the petitioner wearing. Thereafter, the officers informed that the golds should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Section 110-A, the provisional release of goods can be handed over to the petitioner and the adjudication is pending. Thus, the respondents citing pendency of adjudication will not stand in the way to release the gold articles to the petitioner. Further as per Section 125 of the Customs Act, option to pay fine in lieu of confiscation is available to the petitioner. This Court as well as the Delhi High Court and the Apex Court clearly held that gold is not prohibited item and only restricted item. Bringing the restricted item violating certain conditions would not give right for respondent to detain and confiscate gold articles. In this case, the petitioner is willing to pay duty for release of his goods and subject to the outcome of adjudication, the same can be granted. 6. In support of his submission, the learned counsel for the petitioner relied upon a judgment of the Hon'ble Apex Court in Commissioner of Customs vs. Atul Automations Pvt. Ltd. [2019 (365) ELT 465 (SC)] , wherein the Hon'ble Apex Court held that redemption of restricted goods without authorisation upon payment of the market value are permitted and the person carrying the goods is entitled to red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d jewels in question shall be released forthwith. Thereafter, the Department filed Review Application No.89 of 2011 before the First Bench of this Court. The First Bench of this Court, finding that there is no error apparent on the face of the record, vide order dated 25.04.2011, dismissed the said Review Application. Aggrieved over the same, the Department filed S.L.P.(Civil)Nos. 13870 and 13871 of 2011 before the Hon'ble Apex Court. Since the Hon'ble Apex Court was not inclined to entertain the S.L.Ps., the same were permitted to be withdrawn and accordingly, vide order dated 12.05.2011, the Hon'ble Apex Court dismissed the Special Leave Petitions as not pressed. 10. Further, following the above said decision of the Division Bench of this Court, this Court, in W.P.No.2968 of 2016 [Palaniappan vs. The Principal Commissioner of Customs, Chennai and another] , vide order dated 29.02.2016; in W.P.(MD)Nos.2985 and 3124 of 2018 [Tajudeen vs. The Commissioner of Customs, Trichy and others] , vide order dated 21.02.2018; and in W.P.No.5148 of 2018 [Barakathnisa vs. The Principal Commissioner of Customs, Chennai and others] , vide order dated 20.04.2018, granted relief t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f attorney to one Mr.Bairoskhan to represent the petitioner in the adjudication proceedings and other consequential proceedings against the petitioner to be dealt with. 14. The learned Standing Counsel for the respondents submits that based on the specific intelligence, the officers of Directorate of Revenue Intelligence, Chennai Zonal Unit waited at the Customs arrival hall of Trichy Airport along with two independent witnesses. Upon arrival of the said flights and when the passengers arrived through the said flights were about to exit through the green channel, the officers verified their presence and enquired certain passengers including the petitioner herein in the presence of two independent witnesses. The petitioner given a statement under Section 108 of the Customs Act, admitting that he brought gold in small quantities varying from 50 grams to 500 grams. On further enquiry, 128 passengers including the petitioner handed over the yellow metal, which is claimed to be gold. The gold articles seized from the petitioner recorded in the Mahazar, dated 07.11.2019. The details of the gold articles handed over by the petitioner is three chains, two bracelets and one ring all tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be a remote possibility. Further, the petitioner cannot be treated on par with the Indian citizen. Hence, the respondents strongly opposed this petition. 18. Be that as it may, the Hon'ble Apex Court in the case of Commissioner of Customs vs. Atul Automations Pvt. Ltd. [supra] distinguished the prohibited item from restricted item. It would be apposite to extract below Paragraph 9 of the said judgment:- ''9.Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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