TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1082
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted by some of his family members which were seized at the airport. After conducting an enquiry, the impugned order, Ext.P2, had been passed. 3. The main contention urged by the petitioner in the present writ petition is that instead of confiscation, option should have been granted to the petitioner to pay fine by exercising power under Section 125 of the Customs Act. However, the appellate authority did not consider the said claim proceeding on the basis that petitioner had violated the Baggage Rules, 2016 and the prohibition imposed by the Foreign Trade (Development and Regulation) Act, 1992. It is inter alia contended that the power under Section 125 ought to have been exercised as goods that had been brought in as a registered baggage were neither prohibited by the Customs Act or any other law for the time being in force. 4. On the other hand, learned standing counsel appearing on behalf of the respondent while placing reliance on the Foreign Trade (Development and Regulation) Act and the Baggage Rules, 2016 submits that the baggage imported by the petitioner is not a bonafide baggage and fraud was sought to be perpetrated by the petitioner and therefore, there is no reason w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hile considering the question, it was held that "any prohibition" referred to in that Section applies to every type of "prohibition". The prohibition is complete or partial. Any restriction on import or export is to an extent a prohibition. Restriction is also one type of prohibition. Para 11 is relevant which reads as under:- "11. This takes us to the question whether by importing the mare "Jury Maid" the appellant contravened Section 111(d), read with Section 125 of the Act. It was urged on behalf of the appellant that expression "prohibition" in Section 111(d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by clause (3) of the Imports Control Order, 1955. According to the learned counsel for the appellant clause (3) of that Order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Section 111(d) of the Act. While elaborating his argument the learned counsel invited our attention to the fact that while Section 111(d) of the Act uses the word "prohibition". Section 3 of the Imports and Exports (Control) Act, 1947, takes in not merely prohibiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or import/export of the goods. 8. Learned counsel also placed reliance on Section 7 of the Foreign Trade (Development & Regulation) Act, which reads as under:- "7. No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General." 9. The petitioner had brought in different items in 21 cartons. In a statement obtained by the Customs Department under Section 108, it is stated that he was working as a Driver at Abudhabi for the past 4 years and he arrived in India on one month's leave. While coming, he has sent goods as unaccompanied baggage through a cargo agency. Out of 21 boxes, 4 boxes belong to him and 17 boxes belonged to his friends and relatives. It is stated that the phone number appearing in his Airway bill was the number of his family friend one Nazer K.P. Certain follow up action was taken through the Superintendent of Customs, Preventive Unit, Malappuram who informed that no contraband or incriminating documents could be recovered from the house of the passenger an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andatory. 11. Therefore, the only question to be considered is whether the contravention of Baggage Rules, 2016 and breach of the prohibition imposed by the Foreign Trade (Development & Regulation) Act, 1992 amounts to a prohibition under any other law for the time being in force. It is true that various authorities had exercised the discretion to permit release of confiscated goods on payment of redemption fine. But such exercise of discretion is not mandatory if the import is prohibited under the Act or any other law in force. Even in such cases, discretion can be exercised which will depend upon the manner in which the authority approves the transaction. Section 7 of the Foreign Trade (Development & Regulation) Act clearly indicates that no person shall make any import or export except under an importerexporter code number granted by the Director General or the officer authorised by the Director General in that behalf and in accordance with the procedure specified. The rules also clearly prescribe the procedure under how the import or export is to be carried out by preparation of a Bill of Entry. 12. It is not in dispute that the Baggage Rules is an exemption to the general pr....