TMI Blog2011 (3) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... earing passport No. B3003988. The petitioner had arrived at the Chennai Airport, from Singapore, on 11-10-2009. The petitioner was carrying with him gold chains weighing 297 grams, valued at Rs. 3,59,073/-. The petitioner being a Non-resident Indian, was eligible to import gold chains as part of his baggage, availing the benefits under the Notification No. 31/2003-Customs, dated 1-3-2003, which provides for the bringing of gold/gold jewellery, at a concessional rate of duty at Rs. 50/- per gram, on certain conditions. 2. In the said notification it has been stated that the gold imported should not be over 10 kilograms and that the person bringing the gold should have stayed abroad for a period of not less than six months. Since, the petitioner had satisfied all the necessary conditions he is eligible to bring gold ornaments, as part of his baggage. However, the customs authorities attached to the Air Intelligence Unit had intercepted the petitioner and several others, who were bringing gold, as part of the baggage and had seized the gold ornaments from them. According to the respondent customs department the petitioner and the others were only carriers of gold ornaments, which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise the option to re-export the gold, within a period of 60 days. However, for reasons best known to the respondents the goods had not been released for re-export, in spite of the payment of fine and penalty. Since, no appeal or revision had been filed against the order of the Commissioner of Customs (Appeals), dated 5-2-2010, the said order had become final and it has to be implemented by the respondents, in its true letter and spirit. 6. The reasons stated for the refusal to release the goods is that the said Rahamathullah had to pay a sum of Rs. 3,00,000/- and therefore, the goods had not been released. The refusal of the respondents to release the goods in question, for the non-payment of the enhanced penalty, by the said Rahamathullah, is arbitrary and illegal. It is for the respondent department to collect the enhanced penalty from Rahamathullah. The other passengers cannot be held responsible, in any manner, for the non-payment of the enhanced penalty by Rahamathullah. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 7. In the counter affidavit filed on behalf of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the petitioner and the other passengers are entitled to the custody and possession of the gold ornaments for their re-export they cannot be detained for the payment and recovery of the enhanced penalty imposed on Rahamathullah. There is no finding that Rahamathullah is the owner of the goods in question. The imposition of enhanced fine that would be paid by Rahamathullah, amounting to Rs. 3 lakhs, cannot be recovered from the petitioner and the other passengers, as there is no power vested in the third respondent, or in the other officers of the customs department, under Section 142 of the Customs Act, 1962, to recover the penalty imposed on a third person. There is no rule order or regulation permitting the recovery of the penalty imposed on a person from others, who had no direct connection with the same, as in the present case. Therefore, the goods should be permitted to be re-exported subject to the adjudication proceedings, under Section 122 of the Customs Act, 1962. 9. The learned counsel appearing on behalf of the petitioner had relied on the following judgments in support of his contentions : 9.1 In V. Vembu Iyer v. Collector of Customs, Bombay and Another [1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the nature of penalty levied under various provisions of the Customs Act in the decision in Union of India v. Mustafa Najibai Trading Co. (1998) 6 SCC 79 = 1998 (101) E.L.T. 529 (S.C.) whereunder the court has held as follows : This distinction between the nature of the two penalties, viz., penalty in rem and penalty in personam, has been maintained in the Act. The provision regarding confiscation of goods contained in Sections 111 and 113 of the Act is a penalty in rem which is enforced against the goods, while the personal penalties imposed under Section 112 and other provisions of the Act are in the nature of penalty in personam which are enforced against the person concerned. Since the penalty levied on Sri. Yahoo under Section 112(a) is a personal penalty, it cannot be recovered against the importer or against the goods. The O.P. is therefore allowed declaring that the personal penalty imposed on Sri. Yahoo vide Ext.P1 order cannot be recovered from the petitioner or against the vehicle imported by him. It would be open to the respondents to proceed for recovery against the defaulter personally in exercise of powers conferred under Section 142 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the documents in respect of the said goods, that the socalled amendment of manifest by the overseas supplier was after the efflux of time, that too after the seizure of the goods and that the recalling of the documents by the overseas supplier from the importer s bank could have been made only on the advise of the importer on the ground that the importer relinquished the title to the goods. That apart, the original authority, while passing the order in original had imposed the penalty of Rs. 8 lakhs apart from the additional duty and redemption fine for the release of the goods of M/s. Sandip Exports Limited. As far as the first respondent is concerned, the first respondent would seek for release of goods on payment of the additional duty along with the redemption fine. If that be so, for the recovery the penalty of Rs. 8 lakhs the appellant will have to look upon the original importer, namely, M/s. Sandip Exports Limited. In the said circumstances, we are of the view that the presence of M/s. Sandip Exports Limited as a party to the proceedings before the Tribunal was imminent. Though the learned counsel for the first respondent would contend that M/s. Sandip Exports Limited d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. 20. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from any order or decision of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word any would mean all . 11.5 In Commissioner of Customs (Exports) v. Sudarshan Cargo Pvt. Ltd. [2010 (258) E.L.T. 197 (Bombay)] : 3. So far as waiver of redemption fine is concerned, in our opinion, the concept of redemption fine arises in the event the goods are available and are to be redeemed. If the goods are not available, there is no question of redemption of the goods. Under Section 125 a power is conferred on the Customs Authorities in case import of goods becoming prohibited on account of breach of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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