Writ petition challenging a revisional authority's order that partially allowed redemption of seized gold and restored a confiscation order. The court found no merit in the petition and dismissed it, holding the administrative discretion reasonable.
Petition dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1646 OF 1999
Punnilathu Bappu Navas
Indian Inhabitant, having
his address at Punnilath
House, P. Venballoore,
Kodangaloor, P.O. Trichur,
Kerala, presently at Bombay .. Petitioner.
V/s.
1. Union of India
2. Joint Secretary to the
Government of India
having his office at
4th Floor, Jeevandeep,
Sansad Marg, (Parliament
Street), New Delhi 110 001
3. Commissioner of Customs
(Appeals), having his
office at Airpool, Sahar
International Airport,
Mumbai - 400 099.
4. The Additional Commissioner
of Customs, having his
office at Airpool, Sahar
International Airport,
Mumbai - 400 099. .. Respondents.
Mr.Naresh Thacker i/b. Mr.N.M. Shah for the
petitioners.
Mr.P.S. Jetly for the respondents.
CORAM : V.C. DAGA &
J.P. DEVADHAR, JJ.
DATED : 14TH JUNE, 2006.
ORAL JUDGMENT (Per V.C. Daga, J.)
Heard learned counsel for the rival parties.
Perused petition.
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2. The petitioner on 10th October, 1993 arrived
from Muscat holding Gulf Air Ticket for the Sector,
Bombay-Muscat-Bombay/ The petitioner was intercepted
and his baggages were examined and gold weighing
10,144.20 gms. was recovered from him. Panchanama
was duly drawn and the gold in question was seized.
The petitioner on 20th October, 1993 was arrested and
produced before the Chief Metropolitan Magistrate and
came to be remanded to the Judicial Custody. The
petitioner’s statement was recorded under section 108
of the Customs Act, 1962 and thereafter, he was
released.
3. In the aforesaid statement, the petitioner
made a statement that the gold which was purchased by
him was out of his own savings. The said gold was to
be sold in India at Trichur for the purpose of making
a profit since the petitioner had desired to start
some business in India.
4. After recording aforesaid statement of the
petitioner, a show cause notice dated 2nd April, 1994
came to be issued. The petitioner replied to the
said show-cause notice. He was heard. After hearing
him; the respondent No.4 was pleased to pass an
order confiscating gold and also imposed penalty of
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Rs.4,00,000/- under section 112(a) of the Customs
Act, 1962.
5. Being aggrieved by the said order, the
petitioner preferred appeal before the Commissioner
of Customs (Appeals) and on 7th February, 1997
obtained an interim relief subject to deposit of 50%
amount of penalty. Hearing of appeal was directed on
28th February, 1997.
6. The petitioner not being satisfied with the
above order dated 7th February, 1997 preferred
revision under Section 129DD before the respondent
No.2. In the meantime, aforesaid main appeal came up
for hearing; which, ultimately, came to be dismissed
for non-deposit of the amount as directed by the
respondent No.3.
7. The respondent No.2 vide order dated 29th
August, 1997 passed in revision directed restoration
of the appeal and permitted the petitioner to deposit
Rs.1,00,000/- by way of part payment of the penalty
within one month of the receipt of the order. In the
revision, order dismissing appeal for non-compliance
of order of deposit came to be set aside and the
proceedings came to be remanded back to the
respondent No.3 for consideration afresh.
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8. The remanded appeal was, ultimately, came to
be allowed on merits vide order dated 17th December,
1997. The petitioner was allowed to redeem gold
weighing 5 kg. on payment of fine of Rs.1,00,000/-
and balance 5144.29 kgs. of gold was allowed to be
re-shipped on payment of fine of Rs.5,00,000/-.
9. Being aggrieved by the aforesaid order dated
17th December, 1997 the petitioner again preferred
revision under Section 129DD of the Customs Act,
1962. The respondent No.2 - revisional authority was
pleased to pass an order dated 31st July, 1998
allowing 5 kgs. of gold on payment of redemption
fine amounting to Rs.5,00,000/- + duty at the normal
baggage rate and the balance gold was ordered to be
confiscated. The original order imposing penalty on
the petitioner came to be restored.
10. Being aggrieved by the aforesaid order dated
31st July, 1998, the petitioner has invoked writ
jurisdiction of this Court under Article 226 of the
Constitution of India; to contend that the
respondent No.2 was not justified in confiscating
gold and committed an error in restoring the fine
imposed by the original authority.
11. Mr.Naresh Thacker, learned counsel for the
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petitioner contends that respondent No.2 was not
justified in passing the order imposing fine in the
sum of Rs.5,00,000/- together with duty. He further
submits that in number of cases wherein such gold was
seized for non-declaration before the Customs
Authorities, the re-shipment of the gold was allowed
on payment of fine and penalty as such petitioner’s
case ought to have been considered accordingly by the
respondents. The petitioner ought to have been given
similar treatment given in number of identical cases
where the re-shipment of the gold has been allowed as
the petition was placed in the similar circumstances.
12. Mr.Thacker further submits that the gold
weighing 10 kg. was to be carried by the petitioner
to India along with his fellow passenger. But fellow
passenger because of some unavoidable reasons could
not board the flight with the result petitioner was
required to carry total gold weighing 10 kg. with
him. Mr.Thacker, thus, submits that while releasing
gold under the notification dated 1st March, 1992 two
units; @ 5 kg. per person ought to have been
considered and total 10 kg. gold ought to have been
released in favour of the petitioner.
12. Mr.Jetly, learned counsel appearing for the
revenue while supporting the impugned order submits
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that the entire import of gold was contrary to the
Notification No.117/92-Cus. dated 1st March, 1992.
He, thus, submits that as a matter of fact entire
gold ought to have been confiscated. He further
submits that the import of gold beyond 5 kgs. was
not permissible as per the policy adopted by the
Central Government. He further submits that actually
the order of release is not preferable to the
notification dated 1st March, 1992. The revisional
authority while exercising discretion in favour of
the petitioner merely borrowed assistance from the
said Notification dated 1st March, 1992; and
followed given thereunder.
13. Mr.Jetly submits that the view taken by the
respondent No.2 is a reasonable and possible view and
in exercise of writ jurisdiction under Article 226 of
the Constitution of India, this Court should not
interfere with the impugned order.
14. Having heard rival parties and having
examined the factual matrix involved in the case and
having considered the terms of the Notification dated
1st March, 1992, we are satisfied that the respondent
No.2 has exercised discretion in favour of the
petitioner while allowing the redemption of 5 kgs.
of gold borrowing assistance from the Notification
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dated 1st March, 1992. The said notification is not
the foundation of the order. The exercise of
discretion is reasonable and the view taken is a
possible view. No case is made out to interfere with
the impugned order.
15. In the above view of the matter, petition
has no merit. In the result, petition is dismissed
with no order as to costs.
(V.C. DAGA, J.)
(J.P. DEVADHAR, J.)
3 issues framed by the court
Whether the High Court should interfere with the revisional authority's order disposing of seized gold and restoring the imposed fine.
Whether the redemption of 5 kg of gold and confiscation of the balance under the final order was a reasonable exercise of discretion.
Whether the petitioner was entitled to re-shipment of the entire gold quantity as two units were permitted under the relevant notification.
4 provisions across 3 enactments
Punnilathu Bappu Navas
Union of India
Joint Secretary to the Government of India
Commissioner of Customs (Appeals)
The Additional Commissioner of Customs
V.C. Daga
J.P. Devadhar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court