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TMI Blog2022 (2) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... has argued that the case falls under the first part of sub-section (1) of Section 125. In a recent judgment dated 17.02.2022 Division Bench of this Court [ 2022 (2) TMI 1081 - RAJASTHAN HIGH COURT ] has considered a very similar issue. It was a case in which the assessee had attempted to smuggle gold by concealing it in his handbag and not declaring the same upon arrival at the international airport. The authorities had provided absolute confiscation of gold and also imposed penalties. In the context of interpretation of Section 125 of the Customs Act, this Court held Whenever confiscation of goods is authorized under the Act, as per sub-section (1) of Section 125 the adjudicating officer has a discretion to offer redemption fine in lieu of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized gold on the ground that in terms of Section 125 of the Customs Act, 1962 ('Act' for short), the same was prohibited goods. The revisional authority however held otherwise and offered redemption fine upon which this petition has been filed. 3. Learned counsel for the petitioner submitted that there was a systematic attempt at smuggling gold. Absolute confiscation of the seized gold therefore was well within the power of the adjudicating authority in terms of Section 125 of the Act. The revisional authority has committed an error in offering redemption fine. 4. Section 125 of the Act pertains to option to pay fine in lieu of confiscation and reads as under:- "125. Option to pay fine in lieu of confiscation.- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation.-For removal of doubts, it is hereby declared that in cases where an order under sub-section (1) has been passed before the date on which the Finance Bill, 2018 receives the assent of the President and no appeal is pending against such order as on that date, the option under said sub-section may be exercised within a period of one hundred and twenty days from the date on which such assent is received.] 5. Sub-section (1) of Section 125 thus provides that whenever confiscation of any goods is authorized by the Act, the officer adjudging it, the importation or exportation of goods which is prohibited may and shall in other cases offer an option to pay fine in lieu of confiscation. It is in this context that the counsel for the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is not prohibited. In such a case there is a mandate to offer redemption fine in lieu of confiscation as the officer thinks fit. In the present case all three authorities have provided for absolute confiscation of the goods without any facility of payment of redemption fine. This in our view was not correct. This is exactly what the Andhra Pradesh High Court has held in case of Shaik Jamal Basha Vs. Government of India reported in 1997 (91) ELT 277 (AP). The Division Bench of the High Court in the context of Section 125 of the Customs Act had held as under:- "3. But, all the same, we find the petitioner is entitled to a different relief. The order of confiscation is made under Section 111 of the Customs Act, 1962 on account of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirely different. Section 112 of the Act pertains to penalty for improper importation of goods. Section 125 on the other hand pertains to option to pay fine in lieu of confiscation. As noted sub-section (1) of Section 125 comes in two parts. Whenever confiscation of goods is authorized under the Act, as per sub-section (1) of Section 125 the adjudicating officer has a discretion to offer redemption fine in lieu of confiscation in case of goods importation or exportation whereof is prohibited. In all other cases there is a statutory mandate on the adjudicating officer to offer such redemption fine. If the interpretation of Section 112 and 125(1) is not reconciled as above, this latter portion of sub-section (1) of Section 125 which covers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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