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2016 (9) TMI 724 - CESTAT MUMBAI

2016 (9) TMI 724 - CESTAT MUMBAI - TMI - Absolute confiscation under section 111(i), (j) and (m) of the Customs Act, 1962 - cut and polished diamonds and pendants - prohibited goods or not - Held that: - goods of commercial nature not allowed to be imported as part of passenger baggage. Also, the importer does not hold any Import Export Code - non-fulfillment of the restrictions imposed would bring the goods within the scope of prohibited goods. The decision of the case Molok Boloky [2004 (8) TM .....

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Appeal No. C/445/09 - A/90022/16/SMB - Dated:- 2-9-2016 - Shri Raju, Member (Technical) Shri Anil Balani, Advocate for Appellant Shri V.R. Reddy, AC (AR) for Respondent ORDER Per Raju The appellant, Mrs. Kiran L Ghaghda, was found carrying cut and polished diamonds and pendants valued at ₹ 40,94,244/-. The said goods were confiscated absolutely under section 111(i), (j) and (m) of the Customs Act, 1962. The order of absolute confiscation has been challenged by the appellant in this appeal .....

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nion of India 2015 (322) ELT 337 (Cal) to argue that option of redemption needs to be extended to the appellant. He further argued that the absolute confiscation has been ordered on the grounds that the appellant was only a carrier and not the owner of the goods. He pointed out that section 125 allows redemption not only to the owner of the goods but also to the person from whose possession the goods have been seized. He further argued that the goods which are freely importable can also be impor .....

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the Foreign Trade Policy, the goods of commercial nature are not allowed to be imported as part of passenger baggage. He further held that the importer does not hold any Import Export Code. He held that non-fulfillment of the restrictions imposed would bring the goods within the scope of prohibited goods . He specifically relied on the decision of the Tribunal in the case of Molok Boloky 2005 (192) ELT 294 (Tri-Del), wherein absolute confiscation was available. 4.1 I find that in the case of Vij .....

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rags and serviceable garments were concealed amongst mutilated garments. The adjudicating authority confiscated the entire consignment absolutely apart from imposing penalties on the appellants. The Tribunal on appeal upheld the confiscation and the appellant approached the Supreme Court and the Hon ble Apex Court held as follows:- 5 Under Section 125 a discretion has been conferred on the officer to give the option to pay fine in lieu of confiscation in cases of goods, the importation or expor .....

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ort and Export (Control) Act, 1947. In the circumstances he considered it appropriate to direct absolute confiscation of the goods which indicates that he did not consider it a fit case for exercise of his discretion to give an option to pay the redemption fine under Section 125 of the Act. The Tribunal also felt that since this was a case in which fraud was involved, the order of the Additional Collector directing absolute confiscation of the goods did not call for any interference. We do not f .....

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rt held as follows :- 12. In 1998 (104) E.L.T. 306 (S.C.), the Supreme Court held, 5. Another contention that was urged by Shri Mahabir Singh was that the Additional Collector, as also the Tribunal, have failed to take into consideration the provisions contained in Section 125 of the Act which prescribes that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or un .....

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cases of goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force but in respect of other goods the officer is obliged to give such an option. In the present case, having regard to the facts and circumstances in which the goods were said to be imported and the patent fraud committed in importing the goods, the Additional Collector has found that the goods had been imported in violation of the provisions of Import (Control) Orde .....

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ot call for any interference. We do not find any reason to take a different view. In the present case too, the concealment had weighed with the Commissioner to order absolute confiscation. He was right, the Tribunal erred. The decision of the Hon ble High Court was challenged by way of SLP before the Hon ble Apex Court. While dismissing the petition, the Supreme Court passed the following order : Applying the ratio of the judgment in the case of Om Prakash Bhatia v. Commissioner of Customs Delhi .....

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