IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28-02-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.1421 of 2011 and M.P.No.1 of 2011 T.Elavarasan .. Petitioner. Versus 1.The Commissioner of Customs (Airport), Anna International Terminal, Chennai Airport, Chennai-600 027. 2.The Additional Commissioner of Customs (Airport), Chennai Airport, Meenambakkam, Chennai-600 027. 3.The Deputy Commissioner of Customs (AIU), Anna International Terminal, Chennai Airport, Chennai-600 027. .. Respondents. Prayer: Petition filed seeking for a Writ of Mandamus, directing the second respondent therein to release 350 Grams of Assorted Gold Jewellery viz., 7 Gold Chains covered by O.S.No.942/2010/AIU, on payment of duty as applicable for the passenger staying abroad for more than 6 months and Passport No.E7473949. For Petitioner : Mr.A.K.Jayaraj For Respondents : Mr.T.R.Senthil Kumar O R D E R 1. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. It has been stated that the petitioner had purchased 7 gold chains (350 gms), vide Invoice No.100047, dated 2.9.2010, from M/s.Arthesdam Jewellery, Singapore. The petitioner had arrived at the Chennai airport, on 4.9.2010, along with the gold chains. Immediately, on his arrival he had declared before the Airport Customs Officers about the possession of the gold chains. However, without accepting the declaration made by the petitioner they had taken his passport and they had threatened that he would be arrested it he did not sign the statement written by the customs officers. Thereafter, he was allowed to leave the airport. 3. It has been further stated that, in spite of the repeated requests made by the petitioner, for the release of the gold jewels and to return his passport, the Superintendent of Air Intelligence Unit had issued summons to the petitioner to appear before him, on 9.9.2010. The petitioner had appeared before the Superintendent of Air Intelligence Unit, as per the summons. However, the gold jewellery had not been released, as per the relevant provisions of the Customs Act, 1962. 4. It has also been stated that the Airport Customs Officers had also seized 650 US Dollars from the petitioner, on the date of his arrival. The US Dollars were meant for payment of duty for the gold chains he had brought from Singapore, having stayed there for more than six months. There is no mis-declaration or non-declaration of the the gold jewellery by the petitioner, as alleged by the respondents. The petitioner had complied with the provisions of Section 77 of the Customs Act, 1962. Even though the respondents are duty bound to release the gold jewellery, on payment of the proper customs duty, the respondents are refusing to release the same, arbitrarily, and contrary to the provisions of the Customs Act, 1962. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 5. The learned counsel appearing on behalf of the petitioner had submitted that the respondents should release the gold jewellery on the petitioner paying the customs duty, as per the Notification No.31/2003-Customs, dated 1.3.2003, along with the applicable penalty, if any, as per Section 125 of the Customs Act, 1962. He had further submitted that it is an admitted fact that the petitioner had been residing at Singapore for more than six months and as such, he is eligible to bring upto 10 kilograms of gold. He had also submitted that gold is not a restricted item. The duty that is to be paid is at the rate of Rs.250/- for every 10 gms of gold imported into India, as per Notification No.31/2003-Customs, dated 1.3.2003, issued under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel had also submitted that the seizure of the goods could be done, under Section 110 of the Customs Act, 1962, if the officer concerned has reason to believe that such goods are liable to be confiscated, as per the procedures prescribed thereunder. Provisional release of the goods seized under Section 110 may be released to the owner, pending the adjudication proceedings, on taking a bond from the person concerned, with such security and conditions, as the Commissioner of Customs may require. The confiscation of improperly imported goods could be made by invoking Section 111 of the said Act. Further, penalty could be levied, under Section 112 of the Customs Act, 1962, for improper importation of goods. Since, the petitioner is the importer of the gold jewellery, as per Clause 26 of Section 2 of the said Act, the respondents ought to have released the gold jewellery to the petitioner, on his paying the proper customs duty and the proper penalty, as per the provisions of the Customs Act, 1962. However, the respondents had refused to release the gold jewellery contrary to the provisions of the said Act and without having sufficient reasons to do so. 7. The learned counsel appearing on behalf of the petitioner had relied on the decision of the High Court of Andhra Pradesh, reported in Shaik Jamal Basha V. Government of India (1997(91) E.L.T. 277 (A.P.), wherein it had been held that an option to pay the fine, in lieu of the confiscation of the goods, is to be given to the importer, in terms of the Second Part of Section 125(1) of the Customs Act, 1962, read with Rule 9 of the Baggage Rules, 1978, framed under Section 79(2) of the Customs Act, 1962. 8. He had also relied on the decision of the High Court of Calcutta, made in Commissioner of Customs (Preventive) Vs. Uma Shankar Verma (2000 (120) E.L.T. 322 Cal.), wherein it had been held that, as per the provisions of Section 125 of the Customs Act, 1962, if the goods are `prohibited' the option to confiscate, without giving an option to the assessee to pay the fine in lieu thereof, is with the customs authorities. However, when the goods are not `prohibited' then the customs authorities have no option but to allow the assessee to pay the fine, in lieu of the confiscation. 9. The learned counsel had also relied on the decision of the Bombay Tribunal, made in Yakub Ibrahim Yusuf V. Commissioner of Customs, Mumbai (2011 (263) E.L.T. 685 (Tri.-Mumbai), wherein it had been held that if the owner of the goods is not known, the option of redemption has to be given to a person from whose possession the goods in question had been recovered. https://hcservices.ecourts.gov.in/hcservices/ 10. In the counter affidavit filed on behalf of the respondents, it has been stated that the petitioner, who is a holder of an Indian passport, bearing No.7473949, had arrived at the Chennai airport, from Singapore, on 4.9.2010. On being questioned as to whether he was carrying gold or gold jewellery he had replied in the negative. From the Customs Declaration Card produced by the passenger it was seen that he had declared the value of the goods he had brought as `NIL'. However, when the baggage of the petitioner had been seized, on suspicion, it was found that he was carrying gold chains of 22 carat purity, weighing 350 grams, valued at Rs.6,23,000/-. He was also found to be carrying with him 600 US Dollars. The gold jewellery had been seized under a mahazar, under Section 110 of the Customs Act, 1962, read with Foreign Trade (Development and Regulation) Act, 1992. The 650 US Dollars carried by the petitioner had also been retained. 11. It had also been stated that the petitioner had admitted, voluntarily, that he did not intend to declare the gold jewellery and that the jewellery did not belong to him. However, he had retracted the statement later stating that it had been obtained under coercion. It had been further stated that, since, the petitioner did not declare the gold jewellery brought by him and as he had attempted to evade the payment of customs duty, in respect of the said gold jewellery, he had contravened the provisions of Section 77 of the Customs Act, 1962. As such, the gold jewellery was liable for confiscation, under Section 111 of the said Act. The petitioner was also liable for penal action, under Section 112 of the said Act. As the petitioner is not the owner of the gold jewellery seized by the respondent he is not entitled for the return of the same, as per the decision of the Chennai Bench, made in G.V.Ramesh Vs.Commissioner of Customs (2010 (252) ELT 212 (Tri-Chennai). 12. It has also been stated that a show cause notice, dated 27.1.2011, had been issued to the petitioner, and based on which adjudication proceedings would be held and proper orders would be passed, as per law, after giving an opportunity of hearing to the petitioner. In such circumstances, the request of the petitioner, to release the gold jewellery in question, to the petitioner, as prayed for by him, in the present writ petition, is liable to be rejected. 13. In view of the averments made in the affidavit filed in support of the writ petition and in the counter affidavit filed on behalf of the respondents and on a perusal of the records available, it is seen that the gold jewellery in question, imported by the petitioner, had been confiscated, under Section 111 of the Customs Act, 1962, on the allegation that the petitioner had attempted to import the said jewel, improperly, without declaring the same, with the intention of evading the payment of customs duty. The respondents https://hcservices.ecourts.gov.in/hcservices/ had also issued a show cause notice asking the petitioner as to why penalty should not be imposed on him, under Section 112 of the said Act. 14. The present writ petition has been filed by the petitioner praying that the second respondent should be directed to release the gold jewellery, covered by F.No.O.S.No.942 of 2010/2010-AIU, on payment of the customs duty applicable for the import of the jewellery, as per the Notification No.31/2003-Customs, dated 1.3.2003, issued under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975. Even though the respondents had stated in the counter affidavit filed on behalf of the respondents that the petitioner had failed to declare the gold jewellery brought by him from Singapore, on 4.9.2010, with the intention of evading payment of customs duty, no proper grounds have been made out for their refusal to release the gold jewellery, on payment of the customs duty. 15. It is not in dispute that the petitioner is entitled to import upto 10 Kilograms of gold, as it is an admitted fact that he had been living abroad for more than six months. It is also noted that gold is not a prohibited item. Further, an option is available to a person, who is the owner of the goods, or where such owner is not known, the person from whose possession or custody such goods had been seized, to pay fine, in lieu of confiscation, under Section 125 of the Customs Act, 1962. In such circumstances, there is nothing shown on behalf of the respondents that the petitioner is not entitled to get the goods released, on his payment of the customs duty and the penalty liable to be paid by him, as per the Notification Notification No.31/2003-Customs, dated 1.3.2003, issued under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975. 16. From the decisions cited supra, relied on by the learned counsel appearing for the petitioner, it is clear that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the goods released, as per Section 125 of the Customs Act, 1962. Accordingly, the respondents are directed to release the gold jewellery in question, provisionally, to the petitioner, forthwith, on his paying the customs duty and the redemption fine, as per the Notification No.31/2003-Customs, dated 1.3.2003, and as per the provisions of Section 125 of the Customs Act, 1962. It is also made clear that the provisional release of the goods in question would be subject to the adjudication proceedings to be conducted by the authorities concerned, and the petitioner shall https://hcservices.ecourts.gov.in/hcservices/ cooperate, fully in the said proceedings. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar csh To 1.The Commissioner of Customs (Airport), Anna International Terminal, Chennai Airport, Chennai-600 027. 2.The Additional Commissioner of Customs (Airport), Chennai Airport, Meenambakkam, Chennai-600 027. 3.The Deputy Commissioner of Customs (AIU), Anna International Terminal, Chennai Airport, Chennai-600 027. + 1 cc to Mr.A.K. Jayaraj, Advocate Sr.13968 + 1 cc to Mr.T.r. Senthilkumar, Advocate Sr.14064 Writ Petition No.1421 of 2011 PA(CO) EU 1.3.11 https://hcservices.ecourts.gov.in/hcservices/