1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 46 OF 2009 The Commissioner of Customs (AP), Mumbai. ..Appellant V/s. Shri Alfred Menezes ..Respondent Mr.A.S.Rao,Advocate for the appellant. Mr.Anil Balani,Advocate for the respondent. CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. DATE: 9th June,2009. P.C. 1. The Revenue has come in appeal on the following questions :- “(a) Whether in view of language of the provisions Sec. 125 of the Customs Act, a discretion vests with the Adjudicating Authority to give option to redeem the goods even though the said goods are liable for absolute confiscation as the importation of said goods are prohibited ? (b) Whether in the facts and circumstances of the case and in law the Tribunal is justified holding that though the goods are liable for confiscation, the same can be released on payment of redemption fine ? 2. Section 125 of the Customs Act, 1962 reads as under ;- 2 “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 exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized] an option to pay i lieu of confiscation such fine as the said officer thinks fit: Provided that,without prejudice tothe provisions of the proviso to sub-section (2) of section 115, such final 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 i sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods.” 3. It is, therefore, clear that Section 125(1) deals with two situations (1) the importation and exportation of prohibited goods and (2) the importation and exportation of any other goods. Insofar as importation or exportation of prohibited goods, the expression used is that where the goods were confiscated, the officer “may”. In the case of any other goods, which are confiscated, the officer “shall”. 3 4. 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 the prohibited goods. The officer has exercised his discretion. The Tribunal has upheld the order of the adjudicating officer. 5. The questions which the Revenue has raised before us therefore would not arise. We are clearly of the opinion that there being discretion is in the adjudicating officer, consequently, there is no merit in the questions (a) and (b). The Appeal is accordingly dismissed. (J.H.BHATIA,J.) (F.I.REBELLO,J.)