Customs, Excise and Gold Tribunal - Delhi
P.C. Joshi vs Collector Of Customs on 17 February, 1987
Equivalent citations: 1987(12)ECR667(TRI.-DELHI), 1987(28)ELT450(TRI-DEL)
ORDER K. Prakash Anand, Member (T)
1. In this case, appellant has imported one revolver (Smith & Wasson) through post parcel which he says has been sent to him by his first cousin, who is running a restaurant in U.K. and is a British citizen. He submitted before the Assistant Collector that it was a free gift and that no C.C.P. had been obtained for the import of the revolver. He requested that he be given release of the revolver on payment of Customs duty. In the order-in-original, the Assistant Collector confiscated the revolver absolutely under Section 111(d) of the Customs Act, 1962. When the matter went Up in appeal before the Collector of Customs (Appeals), he observed that apart from seeking lenient view, the appellant has not put forth any legal point requiring re-consideration of the impugned order. He, therefore, rejected the appeal.
2. Shri J.S. Agarwal appears on behalf of the appellant. He submits that the revolver is meant for bonafide personal use of the appellant and that the District authorities, after making detailed enquiry, had issued a possession licence under the Arms Act, 1959. He refers to Section 125 of the Customs Act, 1962 and states that where the goods are confiscated, the importer should be allowed redemption on payment of redemption fine. It is submitted that under para 158 of the Import & Export Policy, 1985-88, the import of the weapon is permitted. It is further submitted that the import is allowed even under the Baggage Rules. It is further submitted that there are a large number of other cases listed by him in his Paper Book in which the weapons imported in this manner have been allowed to be redeemed on payment of redemption fine. It is submitted that there is a long standing practice in the Custom House of allowing release of such weapons on payment of redemption fine.
3. The learned advocate had relied on the following case law :-
1. 1984(17) E.L.T. 50 - Gujarat State Export Corporation Ltd. and Anr. v. Union of India and Anr..
2. 1985(6) E.C.C. 81 - S.S. Kothari
3. 1985(4) E.C.C. 60 - Impex International v. Collector of Customs Calcutta.
4. AIR 1964 Madras 504 - Collector of Customs, Madras v. H.S. Mehra.
4. Responding, Shri Shishir Kumar, the learned SDR stated that the list of cases furnished by the appellant has no authenticity and, therefore, no evidentiary value. It is submitted that the nature of the cases is not known. Shri Shishir Kumar stated that he is not in a position to say as to whether there has been any long standing practice in the Custom House of allowing release of such weapons on payment of redemption .fine. Referring to the provisions in the Import & Export Policy, it is submitted that the Customs Clearance Permits were issued only in the case of gifts from blood relations. Cousins were not covered. It is emphasized by the learned SDR that the import of the impugned item is prohibited. It is stated that even if the import is subject to any condition, the item in question has to be considered a prohibited item. In support of this view, he referred to the decision in the case of Sheikh Mohd. Omer v. Collector of Customs, Calcutta [AIR 1971 SC 293]. As regards the claim that under Section 125, the importer should be allowed redemption of the goods on payment of fine, it is submitted by the learned SDR that the exercise of powers under Section 125 is discretionary and there is no obligation to allow redemption on payment of "fine. Asked specifically for his comments on Government of India's Order F.No. 405/9/84-Cus.VI, dated 17th October, 1984 on the question of clearance of fire-arms by post, copy of which has been filed in his support by the appellant, Shri Shishir Kumar stated that he had no comments to offer and that there may have been a change in Government's instructions and practice as regards allowing redemption of such goods.
5. The submissions made and the relevant facts have been fully considered. It has been stated on behalf of the appellant that as per Section 125 of the Customs Act, whenever confiscation of any goods is authorised under the Customs Act, the Officer judging such confiscation must allow the importer an option to obtain release of the goods on payment of redemption fine. It would be seen from the wording of Section 125 that where the goods imported are such, the importation or exportation of which is prohibited under the Act or any other law for the time being enforced, then the officer adjudicating the matter may give the owner of the goods, an option to pay in lieu of confiscation such fine as the said officer thinks fit. If, however, the importation or exportation is not so prohibited, the adjudicating officer shall give the owner of the goods, an option to pay fine in lieu of confiscation. In the case of prohibited goods, therefore, there is a discretion vested in the officer adjudicating the matter and there is no obligation as in respect of other goods to allow release of the goods on payment of redemption fine. There can be no doubt that the goods in question are in the prohibited category. As per Section 3 of the Imports (Control) Order, 1955 read with Item 93.02 of Chapter 93 of Schedule 1 to the Import (Control) Order 1S55, import of revolvers and pistols, is prohibited except under and in accordance with a licence or C.C.P. granted by the Central Government or by any officer as specified. As rightly pointed out on behalf of the department, it is now well established in the light of the decision of the Supreme Court in the case of Sheikh Mohd. Omer. v. Collector of Customs. Calcutta (supra) that the expression "any prohibition" in Section 111 (d) of the Customs Act applies to every type of prohibition. This prohibition may be complete or partial. The Supreme Court held that any restriction on import or export is to an extent a prohibition.
6. However, while it is clear that the item imported is a prohibited one in respect of which it is discretionary on the part of the adjudicating officer to allow release on payment of redemption fine or not, the exercise of this power cannot be arbitrary. Nor it can be discriminatory. Appellant has cited in his favour, the provisions of Para 158 of the Import & Export Policy, 1985-88 with a view to make the point that import of fire-arms as gift is permitted. It was further argued that the item imported is one which is permitted even under the Baggage Rules. From the department side, it has been pointed out, quite rightly, that Para 158 of the Policy is applicable only in respect of gifts made from close relations who are Indian Nationals holding Indian Passport and have been living abroad continuously for a period of not less than 2 years. And for this purpose, only father, mother, wife, husband, son, daughter or real brother or real sister of the applicant are considered as close relations. Besides, the grant of C.C.P. in such cases is subject to following of a certain procedure and fulfilment of various other requirements. It is observed that in this case, appellant claims to have received the fire-arm only from a cousin and none of the other requirements have been fulfilled which would enable him to claim the benefit of Para 158 of the Policy. It also does not help the appellant to cite the Baggage Rules, because the impugned item has not come in as an item of Baggage.
7. On the other hand, from the department side, it has not been refuted that there was a practice in the Custom House to allow release of such fire-arms on payment of redemption fine. The appellant has cited some instructions issued by the Central Board of Excise & Customs to the effect that such items should be released on payment of redemption fine. These instructions are not denied. Appellant has also filed a long list of cases where similar cases of fire-arms have been released on payment of redemption fine. The learned SDR has rightly stated that this list is not authenticated. However, there is no denial from the department that in practice, similar items imported in the past have been allowed release on payment of redemption fine.
8. I would, in this connection, refer to the decision of the Calcutta High Court in the case of S.S. Kothari (supra) in which His Lordship Justice A.K. Sengupta observed that the power to give option to the importer to get release of the prohibited goods upon payment of fine is a power coupled with duty and in any event, it should be exercised fairly and reasonably and not arbitrarily and capriciously. It was added that the issue involved in the case related to a taxing statute or fiscal enactment and the Customs authorities were bound by the previous decisions. If the authorities had on previous occasions allowed the importer to release imported car upon payment of fine in lieu of confiscation, it was observed, they could not, unless there were compelling reasons, depart from the previous decision. The authorities could not act differently in identical set of circumstances.
9. Appellant has also cited in his favour the case of Gujarat State Export Corporation Ltd. decided by the Bombay High Court, but this does not held him as the ratio in that matter was, that confiscation is not valid, where the Customs House in fact is in doubt as to whether the goods were prohibited or not. This is not a case where any such doubt was entertained by the Customs House. Similarly, the citation of the decision of the Calcutta High Court in the case of Impex International (supra) does not help the appellant because in that case, again, the matter related to different interpretations being given on whether particular goods were covered or not under REP licence, which is not the case here.
10. In the light of the above discussions, it seems that this is a matter where orders passed are not in accordance with the practice followed by the Customs House in similar cases in the past. The order appealed, against, therefore, is set aside and the matter remanded back to the Assistant Collector for de novo consideration and decision, which is consistent with statutory provisions as well as past practice of the Customs House in similar cases.