Kerala High Court
Jubin Thomas Mathew vs Joint Commissioner Of Customs ... on 23 July, 2025
2025:KER:55853
WP(C)No.39716 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
WP(C) NO. 39716 OF 2024
PETITIONER/S:
JUBIN THOMAS MATHEW,
AGED 44 YEARS
S/O. CHERAPURATHU MATHAI MATHEW, R/O CHERAPURATHU
HOUSE, PANDANAD WEST, CHENGANNUR P.O, ALAPPUZHA,
KERALA, PIN - 689506
BY ADVS.
SHRI.M.A.BABY
SMT.MEENAKSHY PARVATHY
RESPONDENT/S:
JOINT COMMISSIONER OF CUSTOMS (PREVENTIVE),
CATHOLIC CENTRE, BROADWAY, COCHIN, PIN - 682031
BY ADV SMT.SANJANA R.NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:55853
WP(C)No.39716 of 2024
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JUDGMENT
According to the petitioner, he was working as an Engineer in US on contract basis and his family is settled in Kerala. Petitioner used to visit the family frequently. On 19.01.2018, when the petitioner was travelling to Kerala via Singapore, he purchased 600 grams of gold having a value of 34,050 Singapore Dollars (valued Rs. 18,16,800/-) covered by Ext.P1 invoice. The petitioner purchased Canon cameras with lenses for personal use as well. On arrival at Thiruvananthapuram International Airport on 19.01.2018, before making any declaration, the officers of Air Intelligence Unit, Thiruvananthapuram International Airport, intercepted the petitioner and seized the gold and other accessories, including Canon camera and lenses.
2. According to the petitioner, interception was effected without giving the petitioner an opportunity to declare the goods. Based on the same, Ext.P2 Show Cause Notice was issued to the petitioner, proposing to impose a penalty under Sec.112 and 114AA of the Customs Act, 1962, for non- declaration of gold. Even though the petitioner submitted Ext.P3 reply to the same, the respondent passed Ext.P4 Order-in- Original, by which, absolute confiscation was ordered in respect 2025:KER:55853 WP(C)No.39716 of 2024 3 of the gold seized from the possession of the petitioner, whereas, in the case of Canon cameras and its lenses, the petitioner was granted an option to release the same on payment a fine of Rs.1 lakh under Sec.125 of the Customs Act, in addition to the appropriate duty payable on the said goods. The petitioner paid the redemption fee, and got the camera and lenses released.
3. Being aggrieved by Ext.P4, the petitioner submitted an appeal before the Commissioner Appeals, but the same was rejected as per Ext.P6. As against the same, a further revision application was submitted before the Additional Secretary New Delhi and it resulted in Ext.P7, wherein, the revision application was rejected and the order passed by the 1st respondent was confirmed. The writ petition is submitted by the petitioner in such circumstances challenging Ext. P4, P6 and P7 orders. In the writ petition, the petitioner also relied on Ext.P8, yet another Order in Appeal passed in a similar appeal, wherein, the party therein was granted an opportunity to redeem the gold seized from his possession.
4. A statement has been submitted by the respondent disputing the averments contained in the writ petition and also supporting the findings in the impugned orders.
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5. I have heard of Sri. M.A.Baby, the learned counsel for the petitioner and Smt. Sanjana R. Nair, the learned counsel for the respondents.
6. One of the contentions raised in the writ petition is that, the petitioner was improperly denied the opportunity of redemption, as contemplated under Sec.125 of the Customs Act, as far as the gold is concerned. Besides, the petitioner also contends that the petitioner had in fact, retracted from the statement given under Sec.108 of the Customs Act, immediately after recording the same, as the said statement was procured from the petitioner under duress.
7. On the other hand, the learned Standing for the respondent pointed out that, the absolute confiscation was ordered in respect of the gold, in view of the fact that the the gold was found to be in a concealed position, in the trolley bag and therefore the authorities concerned came to a conclusion that the petitioner never had any intention to declare the gold. The learned Standing Counsel brought to the attention of this Court the relevant findings entered into by the Original Authority, Appellate Authority and Revisional Authority, on the said question.
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8. The learned counsel for the respondents also placed reliance on the decision rendered by the Hon'ble Supreme Court in Commissioner of Customs, Mumbai v. M/s Ambalal & Co. AIR 2011 SC (SUPP) 34 and M/S Om Prakash Bhatia Vs. Commissioner of Customs, New Delhi AIR 2003 SC 3581. In the said decisions, the relevance of the conduct of the party concerned while importing the goods, and the matters to be considered in cases where goods were imported by concealment, were clearly discussed.
9. I have carefully gone through the records. As far as Sec.125 of Customs Act 1962 is concerned, it is a discretion available to the adjudicating officer to provide an opportunity to the party concerned, to get the gold redeemed by paying the fine in lieu of confiscation. Sec.125 reads as follows:-
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 the case of any other goods, give to the owner of the goods 4 [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:5
[Provided that where the proceedings are deemed to be concluded under the proviso to sub-section (2) of section 28 or under clause (i) 2025:KER:55853 WP(C)No.39716 of 2024 6 of sub-section (6) of that section in respect of the goods which are not prohibited or restricted, the provisions of this section shall not apply:
Provided further 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.6
[(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.] 7 [(3) Where the fine imposed under sub-section (1) is not paid within a period of one hundred and twenty days from the date of option given thereunder, such option shall become void, unless an appeal against such order is pending.
Explanation.--For removal of doubts, it is hereby declared that in cases where an order under sub-section (1) has been passed before the date on which the Finance Bill, 2018 receives the assent of the President and no appeal is pending against such order as on that date, the option under said sub-section may be exercised within a period of one hundred and twenty days from the date on which such assent is received.]
10. As rightly pointed out by the learned Standing counsel for the respondents, when the adjudicating officer has justifiable reasons to deny the option to redeem the article, to the party concerned, no interference in such decision needs to be made. This is particularly because, such an option has to be exercised by the officer concerned, taking note of the manner in 2025:KER:55853 WP(C)No.39716 of 2024 7 which the import was made or attempted to be made. The fact that such import was made in a concealed position, is very much relevant, to consider the bonafides of the party. Even though not in the context of Sec.125 of the Customs Act, the relevance of such a conduct of the party concerned, was considered by the Hon'ble Supreme Court in Ambalal's case (supra), where the question of eligibility for granting exemption in respect of goods which were imported in a clandestine manner, was the subject matter. After referring to various provisions in the Act, it was observed by the Hon'ble Supreme Court in paragraph 13 and 14 of the said decision as follows:-
13) In short, question before us is whether goods that are smuggled into the country can be read within the meaning of the expression `imported goods' for the purpose of benefit of the exemption notification. We are of the view that `smuggled goods' will not come within the definition of `imported goods' for the purpose of the exemption notification, for the reason, the Act defines both the expressions looking at the different definitions given to the two classes of goods: imported and smuggled, and we are of the view that if the two were to be treated as the same, then there would be no need to have two different definitions.
14) In order to understand the true meaning of the term `imported goods' in the exemption notification, the entire scheme of the Act requires to be taken note of. As noted above, `imported goods' for the purpose of this Act is explained by a conjoint reading of Section 2(25), Section 11, Section 111 and Section 112. Reading 2025:KER:55853 WP(C)No.39716 of 2024 8 these Sections together, it can be found that one of the primary purposes for prohibition of import referred to the latter is the prevention of smuggling [See section 11(2)(c)]. Further, in the light of the objects of the Act and the basic skeletal framework that has been enumerated above, it is clear that one of the principal functions of the Act is to curb the ills of smuggling on the economy. In the light of these findings, it would be antithetic to consider that `smuggled goods' could be read within the definition of `imported goods' for the purpose of the Act. In the same light, it would be contrary to the purpose of exemption notifications to accord the benefit meant for imported goods on smuggled goods.
11. Similarly, in a different context, the same view is taken in Om Prakash Bhatia's case as well. Thus, the issue in this writ petition has to be considered in the light of the aforesaid principles and thus the question that arises is whether the option exercised by the respondent herein, by ordering absolute confiscation as far as the gold is concerned, was legally justifiable.
12. To answer the said question, the manner in which the gold was imported by the petitioner, has to considered. This fact is evident from Ext.P2 Show Cause Notice. It is discernible from the said notice that, while petitioner was intercepted, the officer who held him along with his baggage to the X-ray machine in the arrival hall, subjected the check-in baggage to 2025:KER:55853 WP(C)No.39716 of 2024 9 X-ray scanning, in the presence of witnesses and the said passenger. During the said process, a dark image along the inner tube of the trolley handle was seen, in both his checked-in baggage. According to the officer, the petitioner was once again asked whether he had concealed any gold in any form inside the trolley bags for which the petitioner replied negatively. Thereafter, the officers opened the bag and on verification, it was noticed that the inner tube of the trolley handle inside the bag beneath the cover case of the poly bag, there was a brown colored cello-taped portion. On opening, 4 yellow coloured metallic items in one trolley bag and 2 yellow coloured metallic item in the other trolley bag, were found.
13. Thus, it is evident that, the gold was kept concealed in the bags. This act was specifically taken note of, in Ext.P4 order by the respondent and in page 14 of the Ext.P4 order, a specific finding in this regard was entered into by the respondent. To be precise, in Ext.P4, there is a specific observation that, the petitioner had tried to conceal the gold in the inner tube of the trolley bags which revealed the intention of the petitioner to avoid duty payment. Therefore, the said aspect defeats the contentions raised by the petitioner that the petitioner was intercepted before he could declare the goods.
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14. On the other hand, as far as the Canon cameras with lenses are concenred, the respondent arrived at the finding that, as the same were not in a concealed position, the option of redemption contemplated under Sec.125 could be exercised and the same was provided to the petitioner.
15. The said reasons which prompted the respondent to arrive at the said findings, appear to be reasonable. These findings have been specifically considered and upheld in the appellate order as well as the revisional order. After carefully going through the records and examining the circumstances under which such observations are made, I do not find any scope for interference in the said orders.
16. The next aspect highlighted by the petitioner is relating to the retraction from the statement given under Sec.108 of the Customs Act. Here also, a specific finding was entered into in Ext.P4, with respect to the same, to the effect that, in the letter issued after such statement, absolutely nothing with regard to the same has been raised by the petitioner. Retraction was made after three weeks after the statement was made and therefore this was also found to be not 2025:KER:55853 WP(C)No.39716 of 2024 11 justifiable. I do not find any scope for interference in the said finding. Moreover, as there are ample materials to show that, the petitioner imported the gold in a clandestine manner, by concealing the gold in the inner-lining of the trolley handle, I find that, the said contention also does not have much significance, particularly since, the said factual finding, has been confirmed in appeal as well as in revision.
In such circumstances, after considering all the relevant aspects, I do not find any justifiable grounds to interfere with the orders impugned in this writ petition. Accordingly, this writ petition is dismissed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE SM&SCS/29.07 2025:KER:55853 WP(C)No.39716 of 2024 12 APPENDIX OF WP(C) 39716/2024 PETITIONER EXHIBITS Exhibit P-1 EXHIBIT P-1 Exhibit P-2 TRUE COPY OF THE SCN NO.46/2018 DATED 12.07.2018 Exhibit P-3 TRUE COPY OF THE REPLY TO SCN DATED 17.07.2018 SUBMITTED BY PETITIONER Exhibit P-4 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.
03/2018-19 CUSTOMS (PREV) DATED 24.10.2018 PASSED BY RESPONDENT Exhibit P-5 TRUE COPY OF THE E-PAYMENT CHALLAN NO.305/2018-19 DATED 26.10.18 Exhibit P-6 TRUE COPY OF THE ORDER-IN-APPEAL NO. TVM-
EXCUS-000-APP-570-2019 DATED 01.10.2019 Exhibit P-7 TRUE COPY OF THE REVISION ORDER NO. 159/24- CUS DATED 09.08.2024 PASSED BY ADDITIONAL SECRETARY NEW DELHI Exhibit P-8 TRUE COPY OF THE ORDER-IN-APPEAL NO.TVM-
EXCUS-000-APP-539-2018 DATED 17.07.18 ISSUED BY APPELLATE AUTHORITY RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE