TaxTMI 
TaxTMI 
2025 (2) TMI 30
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....2015-AIR dated 23.11.2015 has been affirmed. 3. The petitioner flew from Dubai on 09.08.2015 along with two others namely Smt.Deepa Sathishkumar and Smt.Ekambaram Devi. As far as the petitioner is concerned, the petitioner was found wearing one gold chain and eight gold bangles totally weighing about 791 grams and valued at Rs. 19,89,365/-. 4. The case of the Department is that the petitioner attempted to walk through the Green Channel without declaring the gold jewellery to the requirements of the Customs Act, 1962 and the rules and thus, by an Order dated 23.11.2015, the Additional Commissioner of Customs vide Order-in- Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR, ordered absolute confiscation of the jewellery items and imposed a penalty of Rs. 2,00,000/- on Smt.Ekambaram Devi under Section 112(a) of the Customs Act, 1962. 5. It is submitted that the petitioner's appeal before the Appellate Commissioner was also rejected and therefore, the petitioner preferred revision before the fourth respondent under Section 129DD of the Customs Act, 1962, which has now culminated in the impugned order rejecting the prayer of the petitioner. Operative portio....
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....rtain cases) Order, 1993, issued under Foreign Trade (Development and Regulation) Act, 1992, read with Customs Notification No.171/94, dated 30-9-94 (as amended). The Applicants did not fulfill the basic condition of eligibility of staying abroad for a minimum period of six months. Thus they are not eligible passengers for the import of gold as they did not satisfy the conditions. If the Applicants were not intercepted they would have smuggled the gold without payment of Customs duty and without any accountal of the same. 10. The Applicants were well aware that gold is not only a dutiable item and needs to suffer customs duty for its import into India, but gold is also subjected to certain restriction with conditions and eligible agencies/persons can only bring the same into India. The manner of opting for the green channel, and making their way to the exit, clearly indicates that they were planning to escape the payment of customs duty and smuggle the gold into India. The impugned gold was discovered only after the Applicants were intercepted and subjected to a search. The Applicants have pleaded for setting aside the Appellate Order and have requested for redemption of t....
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....oner has also relied on the following decisions of the Hon'ble Supreme Court and that of the various High Courts:- i. A.Krishnamoorthy Vs. The Commissioner of Customs, Trichy and others in W.P(MD)Nos.3456, 3460, 3469 & 3557 of 2022 dated 30.03.2022. ii. Chandrasegaram Vijayasundaram Vs. Principal Commissioner (Revision Application) and Ex-Officio Additional Secretary to the Government of India, Mumbai, (2022) 1 Centax 62 (Mad.) iii. Thirumurugan Durairaj Vs. The Principal Commissioner & Ex- Officio Additional Secretary to the Government of India, Mumbai in W.P(MD)No.26438 of 2019 dated 14.06.2022. iv. Rayavarapu Sri Devi Vs. The Principal Commissioner of Customs (Adjudication-Air), Chennai I Commissionerate, Chennai and others in W.P.No.6734 of 2022 dated 19.02.2024. v. Hargovind Das K.Joshi Vs. Collector of Customs, 1992 (61) E.L.T.172 (S.C.) vi. Neyveli Lignite Corporation Limited Vs. Union of India, 2009 (242) E.L.T.487 (Mad.) vii. Shaik Jamal Basha Vs. Government of India, 1997 (91) E.L.T.277 (A.P.) viii. T.Elavarasan Vs. Commissioner of Customs (Airport), Chennai, 2011 (266) E.L.T.167 (Mad.) i....
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..... 23. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr., (1986) Supp. SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though availa....
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....2023. Specifically, a reference was made to Paragraph 10 from the said decision of this Court. It reads as under:- "10. In this case, the Officers of the respondents are located in Vishakapatnam and in Nellore both within the jurisdiction of the High Court of Andhra Pradesh. Any clarification will have to be furnished only by these Officers from Andhra Pradesh of the respondents herein. Merely because, the first respondent also has an office in Chennai Ipso facto would not entitle to the petitioner to invoke the jurisdiction of this Court under Article 226(2) of the Constitution of India. The writ petition is therefore liable to be dismissed in the light of the above discussion." 15. Learned Senior Standing Counsel has also drawn attention to the recent decision of the Division Bench of the Delhi High Court in Nidhi Kapoor Vs. Principal Commissioner and Additional Secretary to the Government of India and others, W.P.(C) Nos.8902 of 2021 etc batch dated 21.08.2023. He drew attention to Paragraph 74 of the said decision of the Delhi High Court. It reads as under:- "74. Therefore, without further ado, we have no hesitation in holding that the discretionary powers ....
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....t there was no notification issued under Section 11 of the Customs Act, 1962. 21. It is submitted that the Division Bench of the Delhi High Court had come to the conclusion that golds were smuggled and they were held to be not imported for the purpose of Section 2(33) of the Customs Act, 1962 and the petitioners therein are not "eligible passengers" within the meaning of Notification No.12/2012-Cus dated 17.03.2012. 22. It is submitted that the Division Bench of the Delhi High Court has also dealt with Baggage Rules, 2016 as amended with effect from 01.04.2016. 23. Learned Senior Standing Counsel for the first to third respondents has drawn attention to various paragraphs of two views of the Judges of the Delhi High Court, which are re-produced below:- "32. A bare perusal of section 2(33) of the Act would show that "prohibited goods" are defined as goods, the import or export of which is prohibited by virtue of any prohibition under the Act or any other law for the time being in force. Though at first blush there appears to be a deviation to the effect that it does not include any goods which are not prohibited and such goods in respect of which certain conditions....
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....tion such fine as the said officer thinks fit: Provided 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." 38. During the course of arguments, much had been urged at the behest of the petitioners that if the importation or exportation of the goods is prohibited under this Act or any other law for the time being in force, the adjudicating officer may allow or afford an option to pay such fine in lieu of confiscation, as the officer thinks fit; whereas in case of any other non- prohibited goods, an option "shall be" mandatorily given to the owner of the goods or where such owner is not known, the person from whom possession or custody of such goods had been seized, an option to pay fine or penalty in lieu of confiscation. 39. At the outse....
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.... 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Acts vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorization upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We, therefore, find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under section 112(a) of the Customs Act, 1962." 58. ..... 74. Therefore, without further ado, we have no hesitation in holding that the discretionary powers were properly exercised by the adjudicating authority under section 125 of the Act in passing the order-in-original dated September 16....
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.... for absolute confiscation." 80. ..... 121. Having noticed the different views which have been expressed by various High Courts, this may be an appropriate juncture to briefly take note of some of the incidental rules, circulars and notifications which are asserted to govern the subject. However, the said discussion must necessarily be prefaced with the observation that undisputedly there is no specific notification issued either under section 11 of the Act or section 3(2) of the FTDR relating to the import of gold. 122. To enable us to have a broad overview of the statutory scheme which prevails, our attention was invited firstly to the Baggage Rules, 2016. It may however be noted that rules 3, 4 and 5 essentially deal with the permissible limit of gold and jewellery which may be carried or brought in by passengers arriving from different countries including foreigners. Those Rules essentially deal with the limits up to which such articles may be carried by passengers. We were further informed that subsequently the Central Board of Excise and Customs [ CBEC.] has promulgated the Customs Baggage Declarations Regulations, 2013 and which embodies the Custom....
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....dment to the above Notification vide M.F.(D.R.) Corrigendum F.No.334/1/2012-TRU dated 20.03.2012. 26. Thus, Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 is applicable to gold in any other form including tola bars and ornaments. Sl.No.321 to Notification No.12/2012-Customs dated 17.03.2012 however would include only ornaments studded with stones or pearls. 27. A perusal of the above notification indicates that the above exemption is applicable only to an "eligible passenger" as defined in the said notification. The expression "eligible passenger" has been defined in Condition No.35 to Annexure to Notification No.12/2012-Customs dated 17.03.2012 [General Exemption No.165 in the Customs Manual]. It reads as under:- "For the purposes of this notification, "eligible passenger" means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967 (15 of 1967), who is coming to India after a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits doe....
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....the Baggage Rules, 1998. Appendix A is reproduced below:- Articles allowed free of duty (1) (2) (a) All passengers of an above 10 years of age and returning after a stay abroad of more than three days. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 25,000/- if these are carried on the person or in the accompanied baggage of the passenger. (b) All passengers of and above 10 years of age and returning after a stay abroad of three days or less. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 12,000/- if these are carried on the person or in the accompanied baggage of the passenger. (c) All passengers up to 10 years of age and returning after say abroad of more than three days. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 6,000/- if these are carried on the person or in the acc....
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....ption or reexport cannot be sustained. 44. Considering the fact that the goods are not absolutely confiscable, the Court is of the view that the Impugned Order dated 25.10.2021 passed by the 4th respondent, holding the goods are not redeemable and is not liable to be confiscated is to be interfered with. 45. Therefore, the Impugned Order dated 25.10.2021, affirming the Order of the lower authority or the lower appellate authority is liable to be interfered with. Accordingly, the Impugned Order dated 25.10.2021 is liable to be quashed. 46. Therefore, the case can be remitted back to the 2nd respondent to impose the redemption fine on each of the petitioners under Section 125 of the Customs Act, 1962 taking note of the value of the gold that was attempted to be smuggled by these petitioners. 47. This exercise shall be carried out by the 2nd respondent Joint Commissioner of Customs within a period of 8 weeks from the date of receipt of a copy of this order. 48. If required, the respective petitioners shall be heard before final orders are passed. 49. These Writ Petitions are allowed. No costs. Connected Writ Miscellaneous Petitions....