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5. Countering the arguments, Shri O.P. Arora, learned Senior Departmental Representative, submitted that the Appellant was off-loaded from Iran Airways flight No. IR-810 on 18-10-2002 on the basis of a specific information; that 7 bundles were found inside the five kgs mango pickle container said to have been given to her by a person near the entrance of departure at Airport; that these 7 boundles contained 4175.42 carats of diamonds valued Rs. more than 1.98 crores; that in her statement, Molok Boloky deposed that she met a person in Bhendi bazaar area on one day prior to her departure near Anjuman where she stayed; that enquiries revealed that she had not stayed there; that she had subsequently claimed the ownership of the impugned diamonds; that she had not revealed the source for acquiring/purchasing the diamonds; that the nature of the goods is such that it cannot be claimed to be bona fide baggage of a passenger and the provisions of Sections 50 and 51 are attracted which require presentation of a shipping bill by the exporter and clearance of goods for exportation by the Customs; that the exporter has to comply with the provisions of the Foreign Trade (Development & Regulations) Act and the provisions of the Customs Act; that no import or export shall be made without an Importer-Exporter Code number as per EXIM Policy; that thus IEC number is a mandatory requirement; that the exporter of the goods is prohibited without IEC number and in view of the judgment of the Supreme Court in Om Prakash Bhatia, supra; that it has been held by the Supreme Court in Om Prakash Bhatia's case that "if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods.... This would mean that if the conditions prescribed for import or export of goods are not complied with it would be considered to be prohibited goods." The learned Senior Departmental Representative further submitted that as no procedure for, export of diamonds in question has been complied with, the export of goods is prohibited. Reliance has been placed on the decision in the case of S.G. Rajadhyakshya v. Leela Daulatram Uttam Chandani, 1991 (51) ELT 3 (Bom). Finally the learned Senior Departmental Representative mentioned that a retracted statement could be relied upon as held by the Supreme Court in the case of Surjeet Singh Chhabra v. Union of India, . Reliance has also been placed on the decision in Anil Das v. CC, New Delhi, 2002 (141) ELT 135 (Tri).

6. We have considered the submissions of both the sides. The facts which are not in dispute are that while going out of the country, diamond weighing 4175.42 carats were found concealed in mango pickle container. We agree with the learned Senior Departmental Representative that such a quantity of diamonds worth more than Rs. 1.61 crores cannot be regarded as a bona fide baggage being taken out of the country. We also observe that even as baggage, no declaration had been made as required under the provisions of Section 77 of the Customs Act. In case of Export of goods from India, the provisions contained in the Customs Act and other Acts such as Foreign Trade (Development and Regulation) Act, provision, of Export-Import Policy, etc. are required to be observed and complied with. Section 7 under the Foreign Trade Act provides in very specific terms that "No person shall make any import or export except under an Importer Exporter Code Number granted by the Director General or the officer authorized by the Director General or the officer authorized by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General." No Importer-exporter Code Number has been procured by the Appellant from the said Director General or authorized officer nor any material has been brought on record to show that she was not required to get such a code number. There is no substance in the submissions of the learned Advocate that in the case of baggage permanent IEC number is used as the said provision neither applies to the Appellant, she being having an Iranian Passport is not an Indian and the diamonds in question are not bona fide baggage. Further, in case of export of goods, Section 50 of the Customs Act requires the exporter to file a Shipping bill which should, contain a declaration as to the truth of its content and the goods can be exported only after the proper officer makes an order permitting clearance and loading of the goods for exportation under Section 51 of the Act. None of these provisions have also been complied with. Section 113(d) of the Customs Act provides for confiscation of any goods attempted to be exported or brought within the limit of any Customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force. Further Section 113(e) provides for confiscation of any dutiable or prohibited goods found concealed in a package which is brought within the limit of a Customs area for the purpose of exportation.