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Abdul Razak vs Union Of India on 1 June, 2011 (Kerala High Court)


Posted on October 01 2020

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  IN THE HIGH COURT OF KERALA AT ERNAKULAM
 
WA.No. 2280 of 2008()
 
 
1. ABDUL RAZAK,
                      ...  Petitioner
 
                        Vs
 
1. UNION OF INDIA,
                       ...       Respondent
 
2. THE COMMISSIONER OF CUSTOMS (APPEALS),
 
3. THE ADDITIONAL COMMISSIONER OF
 
                For Petitioner  :SRI.SUNNY MATHEW
 
                For Respondent  :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS
 
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY
 
 Dated :01/06/2011
 
 O R D E R
 
    C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ.C.R.
           ----------------------------------
                     W.A. No.2280 of 2008
            ---------------------------------
              Dated, this the 1st day of June, 2011
 
                         J U D G M E N T
 
Ramachandran Nair, J.
 
This Writ Appeal is filed against the judgment of the learned Single Judge declining to grant the relief prayed for i.e. to direct respondents 2 & 3 to release smuggled gold seized and confiscated by the Department on payment of redemption fine and duty under Section 125 of the Customs Act, 1962 (hereinafter referred to as the Act for short).
 
2. We have heard learned counsel appearing for the appellant and learned Standing Counsel appearing for the respondents.
 
3. The appellant who landed from the Middle East (Riyadh) in a flight on 02/02/1996 without declaring any goods that attracts customs duty passed through the green channel at the Karipur Airport, Kozhikkode. The Customs officers intercepted the appellant at the gate and examined W.A.No.2280/2008 the goods that the appellant had brought along with him from abroad. It was seen that the appellant tried to smuggle out over 8 KGs of gold (69 gold biscuits of 10 tolas each) by concealing it in emergency light, mixie, grinder, car horns etc. The Customs authorities seized the smuggled goods i.e. gold and recorded statement from the appellant under Section 108 of the Act. In the statement, the appellant admitted that he is only carrier of the gold from one Mr.Kamal Mohammed and the smuggled gold is to be handed over to one Mr.M.P.Majeed. The specific case of the appellant before the Customs in the sworn statement recorded under Section 108 is that the appellant is only a carrier and for rendering the service, he is eligible to get only Rs.75,000/-. The smuggled gold seized by the Customs Department were confiscated in adjudication proceedings later, wherein the appellant's claim for release of the gold on payment of redemption fine and duty and personal penalty was rejected by the Department.
 
4. The appellant filed appeal against the confiscation order and penalty levied. Even though penalty amount was W.A.No.2280/2008 reduced to Rs.5,000/- (Rupees five thousand only) confiscation was sustained in appeal and the revision filed before the Government was also unsuccessful. Therefore, the appellant filed the Writ Petition contending that Section 125 of the Act does not provide for absolute confiscation of goods which are not contrabands, and since gold is not a contraband item the appellant is entitled to have the goods released on payment of redemption fine and duty. The learned Single Judge however did not go into the question as to whether goods other than prohibited goods are liable to be released on payment of redemption fine and duty, if the importer opts so, as provided under Section 125 of the Act. On the other hand the learned Single Judge looked into the conduct of the appellant in trying to smuggle the goods without declaring it before the Customs and thereafter conceding that the goods do not belong to him and that he is only a carrier. Since the appellant tried to smuggle out the goods in complete violation of the law and since he is not the owner of the goods particularly being a carrier, the learned Single Judge declined W.A.No.2280/2008 to grant relief in exercise of the discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.
 
5. Before us learned counsel for the appellant contended that Section 125 does not provide for confiscation of goods other than prohibited goods, and according to him, importers' conduct has no significance for considering whether the option exercised by importers to release the goods on payment of redemption fine and duty should be allowed or not. While the learned counsel for the appellant relied on the provisions of the Foreign Trade (Development and Regulation) Act, 1992, and Foreign Trade (Exemption from application of Rules in certain cases) Order, 1993 to contend that gold is not a prohibited goods which can be released on payment of redemption fine and duty, learned Standing Counsel appearing for the Department relied on the judgment of the Supreme Court in Om Prakash Bhatia v. Commissioner of Customs, Delhi, reported in 2003 (155) E.L.T. 423, and contended that when import is permissible on satisfaction of certain conditions, the violation of the same will make the  W.A.No.2280/2008 goods imported as prohibited goods within the meaning of Section 2(33) of the Act, which reads as follows:-
 
"2(33) 'Prohibited goods' means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with."
 
After hearing both sides and after considering the statutory provisions, we do not think the appellant, as a matter of right, can claim release of the goods on payment of redemption fine and duty. Even though gold as such is not a prohibited item and can be imported, such import is subject to lot of restrictions including the necessity to declare the goods on arrival at the Customs Station and make payment of duty at the rate prescribed. There is no need for us in this case to consider the conditions on which import is permissible and whether the conditions are satisfied because the appellant attempted to smuggle out the goods by concealing the same in emergency light, mixie, grinder and car horns etc. and hence the goods so brought is prohibitory goods as there is W.A.No.2280/2008 clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. We, therefore, do not find any merit in the appellant's case that he has the right to get the confiscated gold released on payment of redemption fine and duty under Section 125 of the Act.
 
This Writ Appeal is therefore dismissed.
 
(C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg 
 


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