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TMI Blog2008 (11) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Export-Import Policy, 2002-07, as amended and, hence, gold was not "prohibited goods" within the meaning of the Customs Act but was 'dutiable goods' within the meaning of the said Act. As such, it was incumbent upon the adjudicating authority to, under Section 125(1) of the Customs Act, allow redemption of the confiscated gold, upon payment of a redemption fine to be fixed by the adjudicating authority. 3. He further submitted that even if it is held that gold continued to remain "prohibited goods" on the relevant date, within the meaning of the Customs Act, the adjudicating authority had discretion conferred by Section 125(1) of the Act to order release thereof on payment of fine in lieu of confiscation. In the event the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods the duty chargeable thereon." 6. Dr. Chakraborty further submitted that the Tribunal relied upon a decision of this High Court reported at 2000 (120) E.L.T. 322 (Cal.) Commissioner of Customs (Preventive) v. Uma Shankar Verma. 7. The learned Tribunal failed to appreciate that the Hon'ble Division Bench held that even if the 'prohibited goods' within the meaning of the Act there is an option with the adjudicating authority to allow release of the said goods upon payment of a fine in lieu of confiscation. 8. Dr. Chakraborty submitted that the learned Tribunal failed to appreciate the said position. 9. The learned senior advocate appearing on behalf of the appellant contended that the learned Tribunal who passed the order for abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be so exercised having regard to the facts and circumstances of the case. The Additional Collector of Customs who passed the order of confiscation undoubtedly had the discretion to give an option to the appellants to pay a fine in lieu of confiscation. Presumably the Additional Collector of Customs assumed that he was bound to confiscate the goods because he has not adverted to this aspect in his order. He had undoubtedly the authority under the law to give an option to the importers to pay such fine as was considered appropriate by him (not exceeding the full market value of the goods in question) in lieu of confiscation of the goods. We are of the opinion that since the Additional Collector of Customs who passed the order for absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised in the facts and circumstance of the instant case. 12. We have also heard the learned counsel appearing on behalf of the respondent and as it appears that there is no doubt with regard to the exercising such discretion judiciously by the learned Tribunal and he also could not join issue in respect there with the learned advocate appearing on behalf of the appellant, therefore, in our considered opinion the matter is to be remitted back before the authority for this limited purpose and to this limited extent as to whether or not to give an option to the appellants to redeem the confiscated goods on payment of such fine as may be considered appropriated by him in lieu of confiscation. 13. Accordingly, we direct the said auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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