Kerala High Court
The Commissioner Of Customs ... vs P. Rasheed on 12 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:85414
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
CUS.APPEAL NO. 17 OF 2018
AGAINST THE FINAL ORDER NO.21755/2017 DATED 10.08.2017 IN
C/NO.20109 OF 2016-SM OF CUSTOMS,EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, SOUTH ZONAL BENCH, BANGALORE
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APPELLANT/RESPONDENT:
THE COMMISSIONER OF CUSTOMS (PREVENTIVE),
CATHOLIC CENTRE, BROADWAY, COCHIN-682031.
BY ADVS.
SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENT
GIRISH KUMAR V
RESPONDENT/APPELLANT:
P. RASHEED,
S/O.MOOSAKOYA, H.NO.V/442, PARAMBATH HOUSE, KARAPARAMBA
POST, KOZHIKODE-673010.
BY ADVS.
ISAAC THOMAS(K/571/2014)
SHALINI M ALEXANDER(K/1331/2009)
SHARAD JOSEPH KODANTHARA(K/001677/2018)
JOSEPH KODIANTHARA (SR.)(J-381)
THIS CUSTOMS APPEAL HAVING COME UP FOR HEARING ON 12.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:85414
SATHISH NINAN &
P.V.BALAKRISHNAN, JJ.
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Cus. Appeal No.17 of 2018
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Dated this the 12th day of November, 2024
J U D G M E N T
Sathish Ninan, J.
This appeal is preferred by the Department, challenging
the order of the Customs, Excise and Service Tax Appellate
Tribunal, which set aside the confiscation and penalty
imposed by the original authority.
2. The learned Senior Counsel Sri.Joseph Kodianthara
raised a preliminary objection that the appeal is not
maintainable in the light of the pecuniary limit fixed by
the Central Board of Indirect Taxes and Customs for filing
an appeal before the High Court.
3. We have also heard the learned Central Government
Counsel also.
4. Circular No.F.No.390/Misc./163/2010-JC dated
03.06.2013 issued by the Ministry of Finance reads thus: -
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"Accordingly, it is clarified that if the imposition of redemption fine
alone is the subject matter of dispute, and if such redemption fine
exceeds the monetary limits prescribed, then the matter could be
litigated further in Courts and Tribunal. Further if both the amount
of redemption fine and penalty are in dispute and if such redemption
fine and penalty is in dispute, taken together, exceed the prescribed
monetary limit then the matter should be litigated further."
Therefore, as per the instructions as above, an appeal is
liable to be filed only in cases where the redemption fine
exceeds the monetary limits prescribed. The respondent has
placed before the Court, Instruction F.No.390/Misc./163/
2010-JC, dated 01.01.2016, clarifying that the instructions
with regard to fixing of monetary limits for filing appeals
will apply even to all pending appeals in High Courts/
CESTAT. The relevant sentence reads thus:-
"In this regard, I am directed to inform that the said instructions
will apply to all pending appeals in High Courts/CESTAT."
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5. It is brought to our notice that as per instruction
F.No.390/Misc./163/2010-JC, dated 17.12.2015, the monetary
limit for appeals to the High Court was fixed at ₹ 15 lakhs.
Subsequently, as per instruction F.No.390/Misc./ 163/ 2010-
JC/Pt, dated 30.12.2016, the monetary limit was re-fixed at
₹ 20 lakhs. Thereafter, as per instruction F.No.390
/Misc./30/2023-JC, dated 02.11.2023 the monetary limit was
re-fixed at ₹ 1 Crore. The notification states,
"In exercise of the powers conferred by Section 131BA of the
Customs Act, 1962 and in partial modification of earlier instruction
issued from F.No.390/Misc./163/2010-JC dated 17.08.2011, the
Central Board of Indirect Taxes & Customs (hereinafter referred to
as the Board) fixes the following monetary limits below which
appeal shall not be filed in the CESTAT, High Court....."
6. The value of the recovered article in each of the
present case is only ₹ 18,96,628/- and the penalty imposed
was ₹ 1 lakh. Evidently, the value is below the limit
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notified.
7. The main part of Section 125 of the Customs Act
reads thus:
"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 or, where such owner is not
known, the person from whose possession or custody such goods
have been seized, and option to pay in lieu of confiscation such fine
as the said officer thinks fit:
Gold is not a prohibited good under the Act. Section enables
payment of redemption fine as an option in lieu of
confiscation, to redeem the goods confiscated. The
redemption fine cannot be more than the market price of the
goods. The circulars referred to above mention the reason
for fixing such a monetary limit as "Reduction of Government
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Litigation."
8. The Apex Court in Commissioner of Customs, Amritsar v.
Harish Chander (Civil Appeal No.8690 of 2011), took into
consideration the value of the goods at the time of seizure
and held that it being below the threshold fixed, no appeal
would lie. The Allahabad High Court in the Commissioner of Customs v.
Disha Tulsiani (Neutral Citation No. 2024 : AHC:48658-DB) has, while
dealing with a case of confiscation gold, adopted the same
view.
9. In Cust. Appeal No.3/2008, between Commissioner of Customs,
Amritsar and Customs, Excise and Service Tax Appellate Tribunal, the High
Court of Punjab and Haryana at Chandigarh, held the goods
involved were gold. Therein also, the High Court relying on
the ceiling limit regarding the valuation, held the appeal
to be not maintainable. The said judgment was affirmed by
the Apex Court in Civil Appeal No.8690 of 2011. A similar view was
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adopted by the Calcutta High Court in Cust. Appeal No.8/2016 between
Commissioner of Customs(Preventive), WB, Customs House and Nitya Gopal
Biswas and Anr.
In the light of the above, since the value involved in
the present appeal is much less than the limit fixed, the
appeal would not lie.
Resultantly, the appeal is dismissed as not
maintainable.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
kns/-
//True Copy//
P.S. To Judge
APPENDIX OF CUS.APPEAL 17/2018
PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE SHOW CAUSE NOTICE BEARING
C.No. VIII/10/21/2001 CUS.ADJ DATED
11.02.2002.
ANNEXURE B TRUE COPY OF ORDER-IN ORIGINAL No. 5/2005
DATED 28.02.2005 ISSUED BY THE JOINT
COMMISSIONER
ANNEXURE C A TRUE COPY OF THE ORDER-IN-APPEAL No.
230/2006 DATED 17.10.2006.
ANNEXURE D A TRUE COPY OF THE COMMON FINAL ORDER NO.571-
572 OF 2017 DATED 09.05.2007 18.06.2007 IN
APPEAL NO.C-87 AND 88/2007 OF THE LEARNED
CESTAT
ANNEXURE E A TRUE COPY OF THE ORDER IN APPEAL No.84,85
OF 2008 DATED 31.03.2008.
ANNEXURE F A TRUE COPY OF THE COMMON ORDER DATED
OF 2008 OF THE LEARNED CESTAT, BANGALORE
ANNEXURE G A TRUE COPY OF THE LETTER DATED 15.12.2010
REQUESTING THE LEARNED ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (ECONOMIC OFFENCES),
ERNAKULAM TO RETURN THE ORIGINAL SALE BILL
BOOK BEFORE
ANNEXURE H A TRUE COPY OF THE ORDER IN C.C. NO.41/2003
DATED 17.12.2010 OF THE LEARNED ADDITIONAL
CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES)
ANNEXURE I A TRUE COPY OF THE ORDER-IN-ORIGINAL
NO.1/2012(DENOVO)CUST. DATED 16.02.2012
ANNEXURE J A TRUE COPY OF THE ORDER-IN-APPEAL NO.COC-
CUSTM-OOO-APP-169/2015-16 DATED 31.08.2015.
ANNEXURE K A TRUE COPY OF THE APPEAL FILED BY THE
RESPONDENT HEREIN (WITHOUT ITS EXHIBITS)
BEFORE THE TRIBUNAL.
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