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TMI Blog2023 (5) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... reason and has affirmed the order passed by the Commissioner (Appeals) holding that the import of gold was not prohibited under the Foreign Trade Policy or any other law and, therefore, there is no sufficient ground for absolute confiscation of the gold. Nothing was placed before this Court to challenge the finding of the Commissioner (Appeals), which was upheld by the Tribunal, that Gold is not a prohibited item, and nothing was placed before this Court to establish that this finding of the Commissioner (Appeals) was wrong or erroneous - Even if the goods in question had been brought into India without following the conditions prescribed therefore and those fall within the category of prohibited condition, Section 125 of the Act provides that the Adjudicating Officer may give to the owner of such goods an option to pay fine in lieu of confiscation. Section 128 A of the Act confers powers on the Commissioner (Appeals) to pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. In the present case, the Commissioner (Appeals) has modified the order of absolute confiscation by imposing penalty in lieu thereof, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by stating that 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, we proceed to decide the appeal on the factual premise that Gold does not fall within the category of prohibited goods. In this factual backdrop, this Court concluded that the Adjudicating Authority had passed an order for confiscation of gold without taking into consideration the fact that gold is not a prohibited item and, therefore, it should be offered for redemption in terms of Section 125 of the Customs Act (which will hereinafter be referred to as the Act ) and thus the Customs, Excise and Services Tax Appellate Tribunal, Allahabad has not committed any error in upholding the order dated 27.08.2018 passed by the Commissioner (Appeals) holding that the gold is not a prohibited item and, therefore, it should be offered for redemption in terms of Section 125 of the Act. 6. The aforesaid judgment is sought to be reviewed on the ground that the judgment suffers from mistakes / errors apparent on the face of the record in as much as:- (a) Neither Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in subsection (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others [(1970) 2 SCC 728] wherein it was contended that the expression prohibition used in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 77 of the Customs Act, 1962 and the notification dated 17.03.2012, as amended by the Notification dated 18.04.2012, and the said articles are liable for confiscation under Section 111 of the Act. 10. The Adjudicating Authority further held that as per Section 123 of the Act, the burden to prove that the imported gold was not smuggled, was on the carrier of the gold, from whose possession the goods were seized. As per Section 2 (39) of the Act, smuggling in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 . On the basis of the aforesaid reasoning, the Adjudicating Authority held that the seized gold and Thai currency were liable to be confiscated under Section 111 of the Act. 11. Sri Seth has submitted that non-declaration of the goods itself makes the goods prohibited and it would fall within the definition of prohibited goods under Section 2 (33) of the Act. The appellate authority has passed the order for release of the gold after payment of redemption fine, without referring to the judgment that was relied upon by the adjudicating authority and this Court has also not answered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be offered for redemption in terms of Section 125 of the Act. The Tribunal has recorded that the respondents had brought impugned Gold from Bangkok to Gaya International Airport without declaring the same to Customs Authorities and there was nothing to explain as to how the Customs authorities posted at Gaya International Airport could not detect such huge quantity of gold being removed from Gaya International Airport by passengers on their arrival and there was no explanation as to how the respondents procured gold before they were intercepted at Mughalsarai Railway Station and the Tribunal has dismissed the Appeals for the aforesaid reason and has affirmed the order passed by the Commissioner (Appeals) holding that the import of gold was not prohibited under the Foreign Trade Policy or any other law and, therefore, there is no sufficient ground for absolute confiscation of the gold. 17. Nothing was placed before this Court to challenge the finding of the Commissioner (Appeals), which was upheld by the Tribunal, that Gold is not a prohibited item, and nothing was placed before this Court to establish that this finding of the Commissioner (Appeals) was wrong or erroneous. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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