TMI Blog2022 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... in his bag and not concealed the same in his baggage or on his body. Further, there is no declaration slip obtained from the petitioner and there is no specific rebuttal on the petitioner's assertion that no declaration slip is obtained from him. In fact, he was orally declared by the Customs Officers that he is carrying three gold bangles, totally weighing 150 grams for the marriage in his family, is not specifically denied. The petitioner had consistently taken a stand that he has been working in Singapore and got work permit and is also having a Bank Account for crediting his salary. With his earnings, he had purchased three gold bangles. He had also produced the invoice of the gold bangles to the authorities. Further, there is no concealment of gold in a baggage or body, which prima facie, shows that there is no smuggling and at the most, it is seized for non-declaration. Added to it, adjudication proceedings is yet to be completed. Section 125 of the Customs Act, 1962, gives rights to the owner or from whom the goods have been seized to redeem such goods on payment of fine. Further, this Court consistently held that goods can be handed over on executing 50% of the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid gold bangles were purchased by him using his hard earned money in Singapore, vide the invoice furnished. Thereafter, the Officers had threatened the petitioner and informed him that he should sign in the undertaking letter, as if some other person had handed over the gold bangles for monetary consideration, which is not true. After the petitioner's repeated requests for release of gold bangles and return of passport, the third respondent had returned only the petitioner's passport and retained the gold bangles and informed that they are detaining the gold bangles and handed over Detention/Seizure Receipt, bearing D.R.No.342/2022, dated 01.05.2022. 4. The contention of the Officers that the petitioner is not the real owner of the said gold bangles and he is acting as a carrier for somebody else, is not acceptable. The petitioner, on coming out from the Airport on the very next day, i.e., on 02.05.2022, had sent a detailed representation to the respondents 1 and 2 and the Assistant Commissioner of Customs (Air Customs), Airport, Trichy, repudiating and retracting the earlier statement obtained from him during his detention in the Airport. 5. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em, but it is only a restricted item and it can be handed over to the owner or to the passenger from whom the same has been seized. 10. Further, the learned counsel for the petitioner relied on an order of this Court, dated 28.02.2021, made in W.P.No.1421 of 2011 [T. Elavarasan vs. The Commissioner of Customs (Airport), Anna International Terminal, Chennai and others], wherein a direction has been sought to direct the second respondent therein to release 350 grams of assorted gold jewels viz., 7 gold chains on payment of duty as applicable for the passenger staying abroad for more than six months and passport. A learned Single Judge of this Court after considering the rival submissions and the decisions relied upon by the petitioner therein, directed the respondents therein to release the gold jewels in question, provisionally, to the petitioner therein, forthwith, on payment of customs duty and the redemption fine, as per the Notification dated 01.03.2003 and as per Section 125 of the Customs Act, 1962, subject to the adjudication proceedings to be conducted by the authorities concerned and also directed the petitioner therein to co-operate fully in the said proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962. As per Section 110-A of the Customs Act, 1962, any goods, documents or things seized or bank account provisionally attached, pending the order of the adjudicating authority, may be released to the owner or the bank account holder on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. Thereafter, even in the case of option to pay fine in lieu of confiscation, Section 125 of the Customs Act, 1962 will come into play. As per Section 125 of the Customs Act, 1962, whenever confiscation of any goods is authorized by the Act, the Officer adjudging finds that the importation or exportation of any goods is prohibited under the Act or under any other law for the time being in force, 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 such goods have been seized, an option to pay in lieu of confiscation such fine as the said Officer thinks fit. 13. The learned counsel for the petitioner submits that in case of prohibited items, an option to pay in lieu of confiscation such fine would arise. In the present case, the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no foreign currency available with him to pay the duty, which confirms that the petitioner and others are only carriers. The gold bangles were seized by drawing a Mahazar in the presence of two independent witnesses. The petitioner's retraction cannot be accepted. The invocation of Section 110-A of the Customs Act, 1962 is applicable only to the owners of the gold bangles and not for carriers. After following the seizure, the adjudication proceedings should be initiated against the petitioner and other passengers. The petitioner has to make all his submissions before the adjudicating authority, who shall consider the same. Further, the adjudication proceedings should be initiated to save the revenue of the Nation. 16. Further, in the counter affidavit, the names of 26 passengers and the particulars of gold, totally weighing 4035 Kgs, have been given, which is a bulk quantity. To avoid and camouflage the smuggling activities, such method has been adopted by the petitioner and other passengers. Hence, the learned Senior Standing Counsel strongly opposed this Writ Petition. 17. The learned Senior Standing Counsel relied on a judgment of this Court in A. Krishnamoorthy v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gling and at the most, it is seized for non-declaration. Added to it, adjudication proceedings is yet to be completed. 19. Be that as it may, the Hon'ble Apex Court in the case of Commissioner of Customs vs. Atul Automations Pvt. Ltd. [supra] distinguished the prohibited item from restricted item. It would be apposite to extract below Paragraph 9 of the said judgment:- ''9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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