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2022 (2) TMI 1081 - HC - CustomsEnhancement of penalty under Section 112(a) of the Customs Act - Smuggling - Gold Biscuits - prohibited or restricted goods - show-cause notice was not issued to the petitioner - HELD THAT:- Having perused the documents on record what clearly emerges is that all the three authorities have concurrently come to the conclusion that petitioner had made a clear attempt of smuggling gold biscuits to evade payment of duty. As noted, as per the punchnama the petitioner had made a declaration to the customs officer however in which there was no indication of him carrying sizable quantity of gold. It was only when customs officer carried out a thorough search of his handbag that several gold biscuits were found concealed in spectacle case and camera case. These findings are thus supported by material on record. In writ jurisdiction the High Court would not interfere with findings of facts unless it is shown that the findings are perverse. Section 2(33) of the Customs Act defines the term 'prohibited goods' as to mean any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but would not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with - Import of an item which is not prohibited or restricted but is subjected to import duty and in which case duty may not have been paid is vastly different from categorising the item as prohibited or restricted so as to fall within the ambit of Section 2(33) of the Customs Act. 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, this latter portion of sub-section (1) of Section 125 which covers all cases except where the importation or exportation of the goods is prohibited, would become otiose. The petitions is disposed of with following directions:- (i) The fine of ₹ 40 lacs under Section 112 of the Customs Act imposed by revisional authority is reduced to ₹ 30 lacs. (ii) The issue of fixing the redemption fine in lieu of confiscation requires to be decided. To avoid further delay let this issue be decided by the revisional authority. The proceedings are placed back before the said authority for the limited purpose of deciding the redemption fine that the petitioner may pay if he wishes to avoid absolute confiscation of the seized gold. Fresh order shall be passed preferably within four months from today.
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