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2022 (7) TMI 373 - ALLAHABAD HIGH COURTAbsolute Confiscation - Gold Bars - prohibited goods or not - foreign currencies - Recovery from specially designed cavities made in the shoes of the respondents - non-declaration in the disembarkation slip in contravention of Section 77 of the Act - whether there exists grounds for absolute confiscation of Gold Bars or an option of releasing Gold Bars on payment of redemption fine can be allowed? - non-addressing by the Commissioner (Appeals) of itself, in its final order, the findings recorded by the Adjudicating Authority relating to absolute confiscation - HELD THAT:- Although as per the provisions contained in Section 2 (1) of the Act, the Commissioner (Appeals) or the Appellate Tribunal are not included within the definition of the term “adjudicating authority” and, therefore, they cannot exercise the powers vested in the “officer adjudging” but the power conferred by Section 128-A (3) (a) of the Act to “modify” the decision or order appealed against, is not at all curtailed by Section 2 (1) of the Act and thus, the Commissioner (Appeals) has not exceeded his jurisdiction while modifying the order passed by the “adjudicating authority”. In the order dated 27.08.2018, the Commissioner (Appeals) has held that the import of gold was not prohibited under the Foreign Trade Policy or any other law for the time being in force and, therefore, there is no sufficient ground for absolute confiscation of the gold. This finding has not been reversed by the Tribunal as the Tribunal has affirmed the order passed by Commissioner (Appeals). 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 this appeal is decided on the factual premise that Gold does not fall within the category of ‘prohibited goods’. Section 125 of the Act deals with confiscation of two separate categories of goods. It provides that in the case of goods, the importation or exportation whereof his prohibited under the Act or under any other law for the time being in force, the Officer adjudicating may give an option to pay in lieu of confiscation such fine as the said officer thinks fit. However, in case of any other goods, the officer adjudicating shall give an option to pay in lieu of confiscation such fine as the said officer thinks fit. The Commissioner (Appeals) has held that the gold is not a prohibited item, it should be offered for redemption in terms of Section 125 of the Act and this finding has not been assailed by the Appellants in this Appeal. Thus, the Additional Commissioner, Customs (P.) Commissionerate, Lucknow had passed the order of 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 Act and thus the Customs Excise & Service Tax Appellate Tribunal, Allahabad has not committed any error in upholding the order dated 27.08.2018 passed by the Commissioner (Appeals) holding that Gold is not a prohibited item and, therefore, it should be offered for redemption in terms of Section 125 of the Act - appeal dismissed.
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