9911796707
TMI Blog2025 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order-in-Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR dated 23.11.2015 passed by the second respondent was the subject matter of the Appeal before the third respondent, whereby, the third respondent vide Order-in-Appeal C.Cus-I Nos.263 to 265 of 2016 dated 27.06.2016 confirmed the view of the second respondent.
The cause of action has arisen within the jurisdiction of this Court. Therefore, the objection of the respondents before this Court has to be overruled.
Conclusion - i) The goods not declared at customs and not complying with import conditions can be treated as "prohibited" and subject to confiscation. ii) The impugned order of absolute confiscation set aside and case remitted back to the customs authority to allow for the redemption of the gold upon payment of a redemption fine.
Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111(d) of the Customs Act, 1962 includes restrictions". It is thus clear that gold, may not be one of the enumerated goods, as prohibited goods, still, if the conditions for such import are not complied with, then import of gold, would squarely fall under the definition, "prohibited goods". In para 47 of the said case the Hon'ble High Court has observed "Smuggling in relation to any goods is forbidden and totally prohibited. Failure to check the goods on the arrival at the customs station and payment of duty at the rate prescribed would fall under the second limb of section 112(a) of the Act, which states omission to do any act, which act or omission, would render such goods liable for confiscation ...........". Thus failure to declare the goods and failure to comply with the prescribed conditions has made the impugned gold "prohibited" and therefore liable for confiscation and the Applicants thus liable for penalty. 9. The contentions of the Applicants th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore liable to be dismissed. 12. Revision application is accordingly dismissed." 6. Learned counsel for the petitioner would submit that the issue is covered in favour of the petitioner in terms of the Judgment of the Hon'ble Supreme Court in Directorate of Revenue Intelligence Vs. Pushpa Lekhumal Tolani, 2017 (353) E.L.T. 129 (S.C.). 7. That apart, the learned counsel for the petitioner would submit that gold is not a notified item (specified item) under Section 11 of the Customs Act, 1962 as there is no notification issued in the Official Gazette, prohibiting the importation and exportation of goods either absolutely or subject to such conditions and therefore, the question of ordering absolute confiscation under Section 125 of the Customs Act, 1962 was unwarranted. 8. That apart, the petitioner is a bona fide passenger who was wearing jewellery items and therefore walking through the Green Channel, however, the goods were seized and later detained and have been ordered to be confiscated. 9. Learned counsel for the petitioner has placed reliance on the decision of this Court in Smt.G.K.Shanmuga Priya Vs. The Principal Commissioner & Ex-Officio, Additional Secretary to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents on the other hand would submit that this writ petition is devoid of merits. It is further submitted that this writ petition under Article 226 of the Constitution of India is not maintainable as the impugned order has been passed by the fourth respondent in Mumbai. It is therefore submitted that the writ petition is liable to be dismissed. 12. In this connection, learned Senior Standing Counsel for the first to third respondents has placed reliance on the decision of the Hon'ble Supreme Court in Surya Devi Rai Vs. Ram Chander Rai and others, Civil Appeal No.6110 of 2003 [Arising out of S.L.P.(C) No.12492 of 2002] dated 07.08.2003, (2003) 6 SCC 675, wherein, the Hon'ble Supreme Court has held that the remedy if any that is available to the petitioner under Article 227 of the Constitution of India is supervisory jurisdiction (by the High Courts). 13. Specifically, the learned Senior Standing Counsel for the first to third respondents would submit that the jurisdiction of this Court under Article 226 of the Constitution of India is not available in terms of the law laid down by the Hon'ble Supreme Court. A reference was made to Paragraphs 23 and 24 from the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well." 14. Learned Senior Standing Counsel also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India and therefore on this score also, this writ petition is liable to be dismissed. 18. It is further submitted that even if the writ petition is maintainable, the jurisdiction of this Court is to be confined to Sub-Clause 2 to Article 226 of the Constitution of India and therefore submitted that the writ petition is liable to be dismissed. Even otherwise, the learned Senior Standing Counsel for the first to third respondents would submit that the impugned order does not suffer from any infirmity warranting interference from this Court under Article 226 of the Constitution of India. 19. Learned Senior Standing Counsel for the first to third respondents drew the attention of this Court to a detailed order passed by the Division Bench of the Delhi High Court in Nidhi Kapoor Vs. Principal Commissioner and Additional Secretary to the Government of India and others and Supriya Vs. Additional Secretary to the Government of India and others, 2023 DHC 5933 DB, in W.P.(C)Nos.8902 of 2021 etc batch dated 21.08.2023. 20. Specifically, the learned Senior Standing Counsel for the first to third respondents would submit that under identical circumstances, the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here that section 11(3) of the Act which was brought by way of the Finance Act, 2018, is yet to come into force. 35. ..... 37. Section 2(39) of the Act read in conjunction with subclauses (e), (f), (i), (j) and (m) to section 111 of the Act clearly bring out that import of any "dutiable"; or "prohibited" goods which are not declared at the customs when imported, would be an act or omission amounting to smuggling, and would therefore subject the goods to confiscation. As much is canvassed as to whether "smuggling" of goods can be read or not into the definition of "prohibited" goods, and further that its confiscation and release/redemption are severable course of actions, we reach to the crucial issue of interpreting section 125 of the Act, which provides as under: "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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs v. Atul Automations Pvt. Ltd. [(2019) 7 GSTR-OL 313 (SC); (2019) 3 SCC 539.]. Atul Automations [(2019) 7 GSTR-OL 313 (SC); (2019) 3 SCC 539.] was a case where the appellant in October-November, 2016 imported MFDs without requisite permission, viz., multifunction device, digital photocopiers and printers, which incidentally were also classified as "other wastes" under rule 3(1)(23) of the Hazardous Waste Management Rules, and the goods were confiscated with penalty imposed, declining relief of release/redemption. The challenge was upheld observing that (para 9, pages 318 and 319 in 7 GSTR-OL): "8. 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 sections 11(8) and (9) read with rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provide 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 muta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he free allowance is allowed only on the bona fide baggage as per rule 3 of the Baggage Rules, 2016, I find that the benefit of free allowance is not available to the pax." 79. In arriving at such findings, the learned adjudicating authority took note of section 7 of the FTDR Act as well as rule 3(1)(h) of the Foreign Trade (Exemption from application of rules in certain cases) Amendment Order, 2017. It was concluded that the petitioner was not an eligible passenger and her intention was to evade payment of customs duty and it was a clear case of mis-declaration under section 77 of the Act. It was further held as under: "8.3 I observe that gold once confiscated can be redeemed under section 125 of the Customs Act, 1962. In the instant case, I am not inclined to give an option to the pax for redemption of the said goods as the passenger not only violated the Green Channel but also attempted an act of theft of goods detained by the Department. The intention of the pax was not to clear the goods on payment of applicable duty, fine and penalty but to clear the goods through Green Channel without payment of duty and then to clear the same by way of theft. Hence, the instant case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute. I have also perused the provisions of the Baggage Rules, 1998. 23. The Impugned Order dated 25.10.2021 passed by the 4th respondent under Section 129DD of the Customs Act, 1962 has proceeded on assumption that the petitioners were not entitled to the benefit of Sl.No.321 to Exemption under Notification No.12/2012-Customs dated 17.03.2012. 24. Sl.No.321 to Exemption under the above notification relates to goods falling under Chapter/Heading No.71 or 98 of the 1st Schedule to the Customs Tariff Act, 1971 (51 of 1975). The description of the goods in Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 is as follows:- i. Gold bars, other than tola bars, bearing manufacturer's or refiner's engraved serial number and weight expressed in metric units, and gold coins having gold content not below 99.5%, imported by the eligible passenger. ii. Gold in any form other than, i. including tola bars and ornaments, but excluding ornaments studded with stones or pearls. 25. Sl.No.321 to the above notification deals with import of goods by "eligible passenger" amended in view of the amendment to the above Notification vide M.F.(D.R.) Corrigendum F.No.334/1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring it, make a declaration of its contents to the proper officer. 31. The expression "baggage" has been defined in Section 2(3) of the Customs Act, 1962, as follows:- "baggage" includes unaccompanied baggage but does not include motor vehicles." 32. The gold ornaments worn in person are not "baggage" within the definition in Section 2(3) of the Customs Act, 1962. 33. As far as the "jewellery" is concerned, as per the Rule 6 of the Baggage Rules, 1998, a passenger returning to India is allowed clearance free of duty jewellery in his bona fide baggage to the extent mentioned in column (2) of Appendix D. Appendix D relates to Indian Passenger who has been residing abroad for over one year. It reads as under:- "Column (2) i. Jewellery upto an aggregate value of Rs. 10,000/- by a gentleman passenger, or ii. Upto an aggregate value of Rs. 20,000/- by a lady passenger." 34. As far as passengers returning from countries other than Nepal, Bhutan, Myanmar, China is concerned, the requirement is specified in Rule 3 of the Baggage Rules, 1998. Appendix A is reproduced below:- Articles allowed free of duty (1) (2) (a) All passengers of an above 10 years of age and returning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty free either under the above mentioned notification or under the Baggage Rules, 1998. 40. At the same time, one should not lose sight of the fact that gold is no longer prohibited after the Gold (Control) Act, 1968 was repealed in the year 1990 i.e., with effect from 6th June 1990. 41. The import of gold is not prohibited. Rather, it is restricted and regulated. Therefore, any person carrying gold ornament ought to have paid appropriate customs duty if whether such gold jewellery/ornament was worn in person or kept in the "baggage". 42. Absolute confiscation of the imported quantity of gold in the hands of each of these petitioners cannot be ordered to be absolutely confiscated under Section 125 of the Customs Act, 1962. 43. The option ought to have been given to the owner of such gold to redeem in lieu of confiscation under Section 125 of the Customs Act, 1962. Therefore, the Order rejecting the request for redemption or reexport cannot be sustained. 44. Considering the fact that the goods are not absolutely confiscable, the Court is of the view that the Impugned Order dated 25.10.2021 passed by the 4th respondent, holding the goods are not redeemable and is not liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
