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TMI Blog2012 (8) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... the said gold ornaments under Section 111(a)(l)(m) of Customs Act, 1962. The mobile phone and laptops were also confiscated but allowed redemption on payment of redemption fine of Rs. 5000/- and 6500/- under Section 125 of Customs Act, 1962. A penalty of Rs. 5,00,000/- and Rs. 1,00,000/- was imposed on the applicant under Sections 112 and 114A of Customs Act, 1962. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals), who rejected the appeal as time-barred as the appeal was filed with a delay of 22 days. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government mainly on the following grounds : 4.1 Applicant submitted that he was in personal difficulty and therefore he requested his friend to send the appeal for filing. However, his friend filed the appeal after a delay of 22 days. Applicant requested that said delay cause inadvertently may be condoned. He further explained that due to illness of his old age mother he had to go out of town and his friend delayed the despatch of appeal papers by courier. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4.6 The adjudicating authority failed to appreciate that the term "restricted" is not used anywhere in the Sections 11, 111 and 113 of the Customs Act, 1962 and it is only the term "prohibited" which is used in these sections. Under these circumstances, the matter came up in the cases of Om Prakash Bhatia [2003 (155) E.L.T. 423 (S.C.)] and Shaikh Mohammed Umer before the Hon'ble Supreme Court to decided whether the term "restricted" used separately from "prohibited" in the Exim Policy or law would also mean "prohibited" under these confiscatory provisions of Customs Act because the term "restricted" is not used in these confiscatory provisions of Customs Act and they only use the term "prohibition". The line of argument of the defence was that "restricted" category is different from "prohibited" and the goods cannot be confiscated under the Customs Act because of non-mentioning of word "restricted". Under these circumstances, the Supreme Court held that the term used as "restricted' is also be considered as "prohibited" for these provisions of Customs Act. Therefore, the adjudicating authority failed to appreciate that in these decisions, the Supreme Court has never held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Commissioner of Customs (Preventive), West Bengal v. India Sales International reported in 2009 (241) E.L.T. 182 (Cal.) Hon'ble High Court while deciding whether prohibited has to be read as 'prohibited absolutely' held that the court cannot insert any word in the status since it is in the domain of the legislators. The Hon'ble High Court has also held that option given under Section 125 of the said Act in respect of prohibited goods and right given to authorities for redemption of the confiscated goods cannot be taken away by Court by inserting a particular word therein. The Hon'ble High Court further held that power has been given by legislators to a particular authority to act in a particular manner and the said authority must act accordingly and not otherwise at all. Therefore, the redemption of confiscated gold, on an option pay fine in lieu of confiscation is not against the provisions of Section 125 of the Customs Act. It is therefore, erroneous on the part of the adjudicating authority not to release the impugned gold jewellery on redemption fine. The said jewellery may please be ordered to be released on appropriate redemption fine. 4.10 The adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of gold jewellery and for not condoning the delay of 22 days in filing appeal. In this regard, Government notes that Hon'ble Supreme Court in the case of Collector Land Acquisition Anantnag & Other v. Mst. Katiji and Others - 1987 (28) E.L.T. 185 (S.C.) has held that when delay is within condonable limits laid down by the statute, the discretion vested in the authority to condone such delay is to be exercised following principles laid down in the judgment. In view of principles laid down by Apex Court in the said judgment, the delay of 22 days merit condonation in view of reasons explained by applicant. Therefore, Government condones the said delay. 8.1 Government notes that applicant is the owner of said gold and the said fact is also clear from the bills produced by the applicant. Applicant has pleaded to release the said gold on payment of redemption fine in terms of Section 125 of Customs Act, 1962. The gold was absolutely confiscated relying on the judgment of Hon'ble High Court of Madras in the case of CC (Air), Chennai v. Samynathan Murugesan - 2009 (247) E.L.T. 21 (Mad.). In the said cited case the passenger had imported 7.075 kgs of gold ornaments which were con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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