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2017 (5) TMI 1534

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..... /RR/ADJN/75/2015-16, dated 29-5-2015 passed by the Joint Commissioner of Customs, CSI Airport, Mumbai vide which 232 gms. of gold valued at ₹ 5,72,586/- was absolutely confiscated under Section 111(d), 111(l) and 111 (m) ibid and penalty of ₹ 60,000/- was imposed under Section of 112(a) and (b) of Customs Act, 1962. 2. Brief facts of the case are that the appellant passenger namely Shri Mohammed Husain Ayyub Chilwan on arrival at CSI Airport, Mumbai from Kuwait by Flight No. 9W-571, dated 22-11-2013 was intercepted on the basis of intelligence by the officers of the Air Intelligence Unit (AIU) at exit gate. Further personal search of the passenger resulted into recovery of two gold bars of 116 gms each concealed in his underwear. Thus 232 gms of gold valued at ₹ 5,72,586/- was seized from the passenger. The case was adjudicated and the goods were confiscated absolutely under Section 111(d), 111(l) and l1l(m) of Customs Act, 1962 by the adjudicating Authority and a penalty of ₹ 60,000/- under Section 112(a) (b) of the Customs Act, 1962 was imposed on the appellant. 3. Being aggrieved by the impugned order passed by the Additional Commissioner, CSI, Ai .....

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..... Exim Policy which made the gold liable for confiscation and the passenger is liable for penalty. I find that the limited argument raised by the appellant is for allowing the redemption of gold confiscated absolutely in terms of Section 125 of the Customs Act, 1962. The advocate of the appellant has also quoted some judgments of the Tribunal/Courts allowing redemption of gold in similar cases. 6. In this regard I find that Section 125 of Customs Act, 1962 provides that in case of prohibited goods the adjudicating authority may give an option of redemption and in this way he has discretionary power but for other than prohibited goods the adjudicating authority has to give option to pay fine in lieu of confiscation and in this way the adjudicating authority shall allow redemption to the offender: Whenever confiscation of any goods is authorised by this Act, the officer adjudging it 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 the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody su .....

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..... contrary to Section 125 of Customs Act and consistent view held by various judicial forums, cannot be held as legal and proper. 9. I find that there are series of judgments where redemption of absolutely confiscated gold/gold jewellery has been allowed. In Hargovind Das K. Joshi v. Collector of customs - 1992 (61) E.L.T. 172 (S.C.) the Hon ble Apex Court remanded the case to the Collector for exercising the option of redemption under Section 12$ of Customs Act, 1962. In Universal Traders v. Commissioner - 2009 (240) E.L.T. A78 (S.C.) also the Apex Court allowed redemption of exported goods being not prohibited, In Gauri Enterprises v. CC, Pune - 2002 (145) E.L.T. 706 (Tri.-Bang.) the CESTAT held that if similar goods have been released on fine earlier, selective absolute confiscation is not called for asabsolute confiscation should be an exception rather than a rule. In CC (Airport), Mumbai v. Alfred Menezes - 2009 (242) E.L.T. 334 (Bom.), the Hon ble High Court held that Section 125(1) ibid clearly mandates that it is within the power of adjudicating authority to offer redemption of goods even in respect of prohibited goods. In Yakub lbrahim Yusitf - 2011 (263) E.L.T. 685 (Tri. .....

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..... Krishnakumari v. CC, Chennai - 2008 (229) E.L.T. 222 (Tri-Chennai) ; S. Rajagopal v. CC, Trichy - 2007 (219) E.L.T. 435 (Tri-Chennai); M. Arumugam v. CC, Triehirapalli, 2007 (220) E.L.T. 311 (Tri-Chennai) also it was held that absolute confiscation is not warranted and redemption of gold should be allowed. 10. I find that the adjudicating authority has absolutely confiscated the gold relying on the judgment in the case of CC (Air), Chennai v. Samyanathan Murugesan - 2010 (254) E.L.T. A15 (S.C.) where 7.075 kgs. of gold ornaments concealed in a Television was absolutely confiscated. I further find that in the judgment dated 8-3-2010 in case of Dhanak Ramji while interpreting the scope of Section 125 of Customs Act. 1962 the Hon ble Supreme Court approved discretionary power of the adjudicating/appellate authority in ordering release of confiscated goods on payment of redemption fine. I find that the adjudicating authority ignored not only the huge difference in quantity but also the manner of concealment in the case of Samyanathan Murugesan (supra) vis-a-vis the facts of the case at hand. The adjudicating authority also ignored the fact that Hon ble Apex Court vide judgment date .....

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