TaxTMI 
TaxTMI 
2022 (7) TMI 373
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.... Customs, GST and Central Excise, Lucknow, whereby the respondents were given an option to redeem the confiscated gold on payment of redemption fine. 3. Briefly stated, the facts of the case are that on 11.12.2014 the Government Railway Police (G.R.P.) Mughalsarai had called and informed the officers of the Directorate of Revenue Intelligence (DRI) Varanasi that the respondents had been intercepted by the G.R.P. and during search gold bars were recovered from the specially designed cavities made in the shoes of the respondents. The gold bars were found to be weighing 4,076 grams and valued at Rs.1,09,98,018/- only. On 30.12.2015 the Additional Commissioner, Customs (P.) Commissionerate, Lucknow, had passed an order for absolute confiscation of the seized gold bars and some foreign currencies recovered from the respondents. Further a penalty of Rs.10,00,000/- was imposed on each of the respondents. 4. The respondents filed an appeal against the aforesaid order and the Commissioner (Appeals) partly allowed the appeal by means of his order dated 27.08.2018. The Commissioner held that the gold is not a prohibited item as its import was not prohibited under the foreign trade polic....
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.... "A. Whether the Customs Excise & Service Tax Appellate Tribunal, Allahabad is correct in upholding the order dated 27.08.2018 passed by the Commissioner (Appeals) without addressing itself in its final order the findings recorded by the Adjudicating Authority relating to absolute confiscation of smuggled gold and foreign currency? B. Whether the Customs Excise & Service Tax Appellate Tribunal, Allahabad is correct in allowing to release the smuggled gold on redemption of fine and also by reducing the redemption fine?" 10. However, during submissions made in support of the appeal, Sri. Dipak Seth, the learned counsel for the appellant has abandoned the second substantial question of law and he confined his submissions to the first substantial question of law framed by this Court. 11. Before proceeding to analyze the submissions made on behalf of the contesting parties, it would be appropriate to go through Section 125 of the Act, which 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 exportat....
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....ich are confiscated, the officer "shall". 5. It is, therefore, clear that insofar as the prohibited goods are concerned, there is discretion in the officer to release the confiscated goods in terms as set out therein. Insofar as other goods are concerned, the officer is bound to release the goods. In the instant case, we are concerned with prohibited goods. The officer has exercised his discretion. The Tribunal [2009 (236) E.L.T. 587 (Tri. - Mum.)] has upheld the order of the adjudicating officer." 13. Sri. Seth has also submitted that in the case of Commissioner of Customs Airport, Mumbai Vs. Alfred Menezes (supra) the discretion was exercised by the adjudicating officer and it was confirmed by the appellate authority and, therefore, the High Court had refused to interfere in the matter, whereas in the instant case the adjudicating authority has refused to release the goods and the Commissioner has reversed the order of the adjudicating authority whereby he had exercised his discretion. 14. Sri. Seth has submitted that although the expression "officer adjudging" has not been defined in the Act, it refers to the "adjudicating authority", which is defined in Section 2....
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....er giving an option to the respondents to pay fine in lieu thereof. He has further submitted that the object of the Act is not to confiscate the goods but to recover the custom duty. 18. In rebuttal Sri. Dipak Seth has submitted that Section 128-A of the Act contains a general provision, whereas Section 2 (1) of the Act contains a special provision and it is settled law that the special provision will override the general provision and, therefore, the provision of Section 128-A of the Act will not empower the Commissioner (Appeals) to exercise his discretion as vested in the adjudicating officer by Section 125 of the Act. 19. Having given our thoughtful consideration to the rival submission made on behalf of the parties, we find that although as per the provisions contained in Section 2 (1) of the Act, the Commissioner (Appeals) or the Appellate Tribunal are not included within the definition of the term "adjudicating authority" and, therefore, they cannot exercise the powers vested in the "officer adjudging" but the power conferred by Section 128-A (3) (a) of the Act to "modify" the decision or order appealed against, is not at all curtailed by Section 2 (1) of the Act and t....