TMI Blog2018 (10) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... goods 'may' permit redemption on payment of fine in lieu of confiscation - There are two situations which emerge out of the legal position which needs to be addressed; firstly, whether the impugned goods are in the nature of prohibited goods wherein the adjudicating authority has an option to permit the goods to be redeemed on payment of fine in lieu of confiscation. Secondly, whether the adjudging officer has a discretion so as to allow or not such goods to be redeemed on payment of fine in lieu of confiscation. For the goods to acquire a nature of being prohibited who either be prohibited under Customs Act or any other law for the time being in force or the goods should have been imported wherein the conditions subject to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Augustian P.A, Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Per: P. ANJANI KUMAR The Superintendent, Special Customs Preventive Unit, Kasargod and his team have intercepted 3 different passengers carrying gold from Mumbai to different destinations in Kerala by bus. It was alleged that the gold was being transported at the behest of one Sh. V.K. Mohammad Ali. The gold along with different foreign currencies available with the passengers was seized. Thereafter, the SCNs were issued proposing confiscate and penalties. The same were adjudicated by the lower authorities who confirmed absolute confiscate while imposing penalties. Details as below: SI. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,54,010/- was seized from the appellant's employees. Though, during the investigation, the source of gold procurement was disclosed to the authorities, no efforts were made by the authorities to inquire at that end. The adjudicating authority has confiscated the gold absolutely. The leaned counsel submitted that as even though the gold is liable for confiscation being a non-prohibited item, it is not liable for absolute confiscation and the same needs to be redeemed. 3.1. The learned counsel submitted that the Hon'ble High Court of Andhra Pradesh in the case of Shaikh Jamal Basha Vs. Govt. of India, 1997 (91) ELT 277 (A.P.) held that Hence gold in the form other than ornaments is entitled to be imported on payment of duty. Atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishnakumari 2008 (229) ELT 222 Shabir Ahmed 2009 (235) ELT 402 Dhanak Madhusudan 2009 (237) ELT 280 Sapna Sanjeev 2008 (230) ELT 305 M K Jose O/O No. 13/2012 dated 30.03.2012 Jobichan George O/O No. 19/2012 dated 24.04.2012 Waseem Ahmed Final Order 21323 21324 (CESTAT Bangalore) M/s. Aswin Gold Vs. CC Cochin (Prev) Order-in-Original no. 01-16-17 dated 30.05.2016 4. The learned DR has reiterated the findings of OIO and OIA and sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 6.1. A plain reading of the above provision gives understanding that while the adjudging officer may permit the redemption of goods on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her under Customs Act or any other law for the time being in force at the material time. As per the records of the case, the appellant have not submitted anything to show on record that the goods have been properly imported. It is to be inferred that the impugned gold has been imported without following the due process of law that is to say without following the procedures thereof. Therefore, it is to be held that the impugned goods have acquired the nature of being prohibited goods in view of Section 2 (33) of the Customs Act, 1962. 6.4 Having found that the impugned goods have acquired the nature of prohibited goods, the issue which remains to be decided as to whether the adjudicating authority can exercise in discretion to allow the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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