2023 (9) TMI 773 - DELHI HIGH COURT

Direction to the respondent to release his gold chain in terms of Section 110(2) of the Customs Act, as amended upto date - restricted item - Baggage Rule - unlawful seizure or not - HELD THAT:- There are no hesitation in holding that the respondent has dealt with the entire matter patently in an arbitrary, unjust and illegal manner. Although, this Court in NIDHI KAPOOR, SUPRIYA, SUDHA MURTHY, MR. JASMEET SINGH CHADHA AND MS. SHANAZ MALIK VERSUS PRINCIPAL COMMISSIONER AND ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA & ORS., JT COMMISSIONER OF CUSTOMS, IGI AIRPORT T-3 DELHI, COMMISSIONER OF CUSTOMS, IGI AIRPORT, NEW DELHI, UNION OF INDIA [2023 (8) TMI 1008 - DELHI HIGH COURT] has already laid down the proposition of law that gold is a ‘restricted item’ and if the importation of gold is in the nature of smuggling within the meaning of Section 2(39) of the Act, the adjudicating authority can exercise the discretion under Section 125 of the Act to absolutely confiscate the gold items and levy not only duty but also impose fine/penalty apart from declining to redeem/release the goods. However, decision in the aforesaid case decided by this Court does not come in the way of the petitioner for grant of appropriate relief in law since, firstly, it is evident that the respondent has not followed the procedure prescribed in the Act.

Reference can also be invited to a decision of our own High Court in the case of JATINDER KUMAR SACHDEVA VERSUS THE UNION OF INDIA AND ORS. [2016 (12) TMI 523 - DELHI HIGH COURT] wherein a gold kara (bracelet) seized from the petitioner on arrival in India and detained for more than a year without any notice was held to be unsustainable in law and the gold item was ordered to be released to the petitioner.

It is relevant to indicate that the procedure for sale of goods and application of sale proceeds is governed by section 150(1) of the Act, which provides that where any goods not being confiscated goods are to be sold or disposed of under any provision of the Act in terms of section 110(1A), a notice must be issued to the owner. At the cost of repetition, the gold chain had since been deposited in the Government Mint, Mumbai on 26 June 2018 without any notice to the petitioner, which fact was brought on the record during the hearing on 27 May 2019.

The Writ Petition allowed by thereby directing the respondent to do the necessary assessment/ evaluation as to the value of gold item as on 26 June 2018 based on the tariff value of gold applicable on that day, as per prescribed RBI parameters including the notification referred to hereinabove, and pay a sum equivalent thereto to the petitioner.