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MOHAMED FAZIL S/O. BASHER Versus DEPUTY COMMISSIONER OF CUSTOMS (ACC) COCHIN AND CHAIRMAN COCHIN INTERNATIONAL AIR PORT COCHIN

Confiscation of unaccompanied baggage - the petitioner brought in a few items of food articles entrusted by some of his family members which were seized at the airport - different items in 21 cartons - Scope of redemption fine u/s 125 - The only contention urged is that since the goods are not prohibited goods, the appellate authority ought to have granted the petitioner an option to redeem the goods on payment of fine - Held that: - When the statutory authority considered the relevant aspects a .....

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ition dismissed - decided against Petitioner. - W.P. (C) No. 33966 of 2016 - Dated:- 8-11-2016 - A.M. SHAFFIQUE, J. FOR THE PETITIONER : ADVS.SRI.P.A.AUGUSTIAN, SRI.M.A.BABY, SMT.LINDA.M.J. FOR THE RESPONDENT : SRI.M.GOPIKRISHNAN NAMBIAR, SRI.SREELAL N. WARRIER, SC JUDGMENT This writ petition is filed challenging Exts.P2 and P3 and seeking consequential reliefs. Ext.P2 is an order passed by the Deputy Commissioner of Customs on 2/9/2016 by which the goods covered by Baggage Declaration No.2490 d .....

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entrusted by some of his family members which were seized at the airport. After conducting an enquiry, the impugned order, Ext.P2, had been passed. 3. The main contention urged by the petitioner in the present writ petition is that instead of confiscation, option should have been granted to the petitioner to pay fine by exercising power under Section 125 of the Customs Act. However, the appellate authority did not consider the said claim proceeding on the basis that petitioner had violated the .....

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n) Act and the Baggage Rules, 2016 submits that the baggage imported by the petitioner is not a bonafide baggage and fraud was sought to be perpetrated by the petitioner and therefore, there is no reason why the petitioner should be granted option to pay fine in lieu of confiscation. 5. Learned counsel for the petitioner placed reliance on the judgment of the CESTAT, West Zonal Bench, Mumbai in Yakub Ibrahim Yusuf v. Commissioner of Customs, Mumbai [2011 (263) E.L.T. 685 (Tri-Mumbai)]. In the sa .....

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of the confiscated goods cannot be taken away by Court by inserting a particular word therein. 6. Reference to is made to another judgment in Shaik Jamal Basha v. Government of India [1997 (91) E.L.T. 277 (A.P.) This judgment is by Division Bench of Andhra Pradesh High Court. It was held that Rule 9 of Baggage Rules, 1979 framed under Section 79(2) of the Customs Act, 1962 lists gold in any form other than ornaments in Appendix B of the Rules as articles which shall not be imported free of duty .....

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in so far as there is no prohibition either under the Baggage Rules or any other statute, the authorities ought to have granted the right to redeem. 7. On the other hand, learned Standing Counsel appearing for the Department placed reliance on two judgments of the Apex Court:- (i) Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others (1970 (2) SCC 728). In this case, the Apex Court was considering the meaning of the word 'prohibited goods' as defined under Section 2(33) of the .....

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the appellant contravened Section 111(d), read with Section 125 of the Act. It was urged on behalf of the appellant that expression prohibition in Section 111(d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by clause (3) of the Imports Control Order, 1955. According to the learned counsel for the appellant clause (3) of that Order deals with the restrictions of import of certain goods. Such a restriction cannot be consider .....

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nd Exports (Control) Act, 1947, as that statute deals with restrictions or otherwise controlling separately from prohibitions. We are not impressed with this argument. What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to any prohibition imposed by any law for the time being in force in this country is liable to be confiscated. Any prohibition referred to in that section applies to every type of prohibition . That prohibition may be comp .....

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prohibitions. Restriction is one type of prohibition. From Item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues. (ii) Om Prakash Bhatia v. Commissioner of Customs, Delhi [2003 (155) E.L.T. 423 (S.C)]. In this case, the question was whether over-invoicing the goods for export would mean attempt to export prohibited goods. While referrin .....

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ses where the export value is not correctly stated, but there is intentional overinvoicing for some other purpose, then it would amount to violation of the conditions for import/export of the goods. 8. Learned counsel also placed reliance on Section 7 of the Foreign Trade (Development & Regulation) Act, which reads as under:- 7. No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director Gen .....

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longed to his friends and relatives. It is stated that the phone number appearing in his Airway bill was the number of his family friend one Nazer K.P. Certain follow up action was taken through the Superintendent of Customs, Preventive Unit, Malappuram who informed that no contraband or incriminating documents could be recovered from the house of the passenger and from the house of Nazer K.P. In a statement of Nazer K.P recorded under Section 108, he stated that he does not know the petitioner .....

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Ext.P4, an order passed by the CESTAT wherein the Commissioner of Customs in an almost similar situation permitted clearance of goods on payment of redemption fine. Section 125 reads as under:- 125. Option to pay fine in lieu of confiscation - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in .....

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y fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in subsection (1), shall, in addition, be liable to any duty and charges, payable in respect of such goods. On a bare reading of the statutory provision, it is clear that the competent officer is entitled to exercise the discretion permitting the owner or person in possession from whose custody the goods had been seized, an option to pay in lieu of confiscation a fine as th .....

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ny other law for the time being in force. It is true that various authorities had exercised the discretion to permit release of confiscated goods on payment of redemption fine. But such exercise of discretion is not mandatory if the import is prohibited under the Act or any other law in force. Even in such cases, discretion can be exercised which will depend upon the manner in which the authority approves the transaction. Section 7 of the Foreign Trade (Development & Regulation) Act clearly .....

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Exemption from Application of Rules in certain cases) Order, 1993 indicates that nothing contained in the Rules shall apply to the import of any goods by the person as passenger baggage to the extent admissible under the Baggage Rules for the time being in force. Baggage Rules of 2016 have been framed under Section 79 of the Customs Act, 1962. It has come into effect from 01/04/2016. Unaccompanied baggages are dealt with under Rule 8 which indicates that all the rules shall apply to unaccompanie .....

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the said Appendix. A perusal of the Appendix to the rules would show the nature of goods that could be brought depending upon the duration of stay abroad. The goods are mainly used personal and household articles, other than such articles mentioned in Annexures I, II and III. In any case, none of the materials now produced relate to those coming under Annexures I, II and III. Therefore, in order to become a bonafide baggage, the articles should be used personal and household articles. In the ca .....

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d 'prohibited' had been defined under Section 2(33) and that apart, the judgment of the Apex Court in Om Prakash Bhatia (supra) clearly indicates the scope and effect of what is prohibited goods . If there are restrictions in importing certain goods and if the conditions for importing has not been complied with, it definitely amounts to a prohibition under the relevant statutes. In the case on hand, though the items are household items, the baggage not being bonafide is not permissible t .....

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