(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:
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.
[(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.]
[(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
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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
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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
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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
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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
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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
