Allahabad High CourtCommissioner Of Customs, Lucknow ... vs Sri Rajesh Jhamatmal Bhat And ... on 5 May, 2023Bench: Devendra Kumar Upadhyaya, Subhash VidyarthiHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\nHigh Court of Judicature at Allahabad\n \nSitting at Lucknow\n \n************************\n \nRESERVED\n \n	Judgment Reserved on :  07.04.2023\n \n	Judgment Pronounced on: 05.05.2023\n \nCourt No. - 1\n \nCase :- CIVIL MISC REVIEW APPLICATION No. - 156 of 2022\n \nApplicant :- Commissioner Of Customs, Lucknow (In Cusa 7 Of 2019 )\n \nOpposite Party :- Sri Rajesh Jhamatmal Bhat And Another\n \nCounsel for Applicant :- Dipak Seth\n \nCounsel for Opposite Party :- Sanjay Kumar\n \nHon'ble Devendra Kumar Upadhyaya, J.Hon'ble Subhash Vidyarthi, J.Per: Hon'ble Subhash Vidyarthi J.1. Heard Sri Deepak Seth Advocate, the learned Counsel for the petitioner-Commissioner of Customs and Sri Yogesh Kumar S. Gorle Advocate, the learned Counsel for the respondents.2. The instant application has been filed seeking review of the judgment and order dated 06.07.2022 passed by this Court in Customs Appeal No. 7 of 2019.3. The aforesaid customs appeal was filed against the judgment and order dated 13.02.2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, Allahabad, dismissing Customs Appeal No. C/71388-71389/2018, which were filed by the Commissioner of Customs, Lucknow against an order dated 27.08.2018 passed by the Commissioner (Appeals), Customs, GST and Central Excise, Lucknow whereby the respondents were given an option to redeem the confiscated gold on payment of redemption fine. The appeal was admitted by an order dated 21.04.2019 on the following substantial questions of law:-"A. Whether the Customs Excise & Service Tax Appellate Tribunal, Allahabad is correct in upholding the order dated 27.08.2018 passed by the Commissioner (Appeals) without addressing itself in its final order the findings recorded by the Adjudicating Authority relating to absolute confiscation of smuggled gold and foreign currency?B. Whether the Customs Excise & Service Tax Appellate Tribunal, Allahabad is correct in allowing to release the smuggled gold on redemption of fine and also by reducing the redemption fine?"4. During hearing, the learned counsel for the appellant did not press substantial question No. B and he had confined his submissions to question No. A only.5. The aforesaid question No. A has been answered in the judgment sought to be reviewed by stating that "nothing has been placed before this Court to establish that this finding of the Commissioner (Appeals) is wrong or erroneous and that gold falls within the category of ''prohibited goods'. Therefore, we proceed to decide the appeal on the factual premise that Gold does not fall within the category of ''prohibited goods." In this factual backdrop, this Court concluded that the Adjudicating Authority had passed an order for confiscation of gold without taking into consideration the fact that gold is not a prohibited item and, therefore, it should be offered for redemption in terms ofSection 125of the Customs Act (which will hereinafter be referred to as ''the Act') and thus the Customs, Excise and Services Tax Appellate Tribunal, Allahabad has not committed any error in upholding the order dated 27.08.2018 passed by the Commissioner (Appeals) holding that the gold is not a prohibited item and, therefore, it should be offered for redemption in terms ofSection 125of the Act.6. The aforesaid judgment is sought to be reviewed on the ground that the judgment suffers from mistakes / errors apparent on the face of the record in as much as:-(a) NeitherSection 2(33) of the Act has been considered nor the judgment of the Hon'ble Supreme Court in case ofOm Prakash Bhatia v. Commissioner of Customs, 2003 (155) ELT 423 (SC) has been considered;(b) The case laws submitted by the appellant have not been considered; and(c) The question of law no. (A) as formulated, has not been decided as no finding has been recorded as to whether the Tribunal was correct in upholding the order passed by the Commissioner Appeals without addressing the findings recorded by the adjudicating authority relating to absolute confiscation of smuggled gold.7. Sri Seth has relied upon a decision of CESTAT, West Zonal Bench, Mumbai in Shanti Lal Jain v. Commissioner of Customs, Mumbai, 2006 (204) E.L.T. 300 (Tri.-Mumbai) in which the CESTAT held that ''since import of gold is now allowed subject to conditions and restrictions, in view of the cited decision of the Hon'ble Supreme Court, the impugned gold is to be treated as prohibited goods and the order of absolute confiscation passed by the lower appellate authority, is to be held as legal and proper. He has relied upon a decision of the Hon'ble Supreme Court in the case ofSheikh Mohd. Omer v. Collector of Customs, Calcutta and others, 1983 (13) E.L.T. 1439 (S.C.), wherein the Hon'ble Supreme Court held that ''What clause (d) ofSection 111says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial.'8. The next decision placed by Sri Deepak Seth before this Court isOm Prakash Bhatia v. Commissioner of Customs, Delhi, 2003 (155) E.L.T. 423 (S.C.) in which the Hon'ble Supreme Court held as under:-"8. Further, Section 2 (33) of the Act defines "prohibited goods" as under:--"prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with."9. From the aforesaid definition, it can be stated that (a) 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; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. 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. This would also be clear from Section 11 which empowers the Central Government to prohibit either ''absolutely' or ''subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court inSheikh Mohd. Omer v. Collector of Customs, Calcutta and Others[(1970) 2 SCC 728] wherein it was contended that the expression ''prohibition' used in section 111 (d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus:--"... What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in section 111 (d) of theCustoms Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" inSection 111(d)of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues."9. Sri Seth has submitted that the case law relied upon by the adjudicating authority has not been dealt with by any higher authority, including by this Court. He has submitted that the Adjudicating Authority has recorded in his order dated 30.12.2015 that the officers of the GRP Mugalsarai had handed over to officers of DRI Varanasi the respondents along with impugned gold bars and Thai currency. In their statements, the respondents had admitted having brought the said impugned gold and Thai currency into India illegally without declaring the same at Gaya International Airport. The impugned goods were seized on the basis of a reasonable belief that the same were illegally brought into India in contravention of the provisions pertaining to its import and the same were liable to be confiscated underSection 111of the Customs Act, 1962. The Adjudicating Authority held that the respondents had brought the impugned gold and Thai currency from a foreign country to India in contravention of the provisions ofSection 77of the Customs Act, 1962 and the notification dated 17.03.2012, as amended by the Notification dated 18.04.2012, and the said articles are liable for confiscation underSection 111of the Act.10. The Adjudicating Authority further held that as perSection 123of the Act, the burden to prove that the imported gold was not smuggled, was on the carrier of the gold, from whose possession the goods were seized. As perSection 2(39) of the Act, "smuggling in relation to any goods, means any act or omission which will render such goods liable to confiscation underSection 111orSection 113". On the basis of the aforesaid reasoning, the Adjudicating Authority held that the seized gold and Thai currency were liable to be confiscated underSection 111of the Act.11. Sri Seth has submitted that non-declaration of the goods itself makes the goods ''prohibited' and it would fall within the definition of prohibited goods underSection 2(33) of the Act. The appellate authority has passed the order for release of the gold after payment of redemption fine, without referring to the judgment that was relied upon by the adjudicating authority and this Court has also not answered the question, as it was framed and, therefore, order passed by this Court ignoring the provision ofSection 2(33) of the Act and the judgment in the case of Om Prakash Bhatia (Supra) suffers from errors apparent on the face of the record.12. Sri. Yogesh S. Gorle, the learned Counsel for the respondents, has submitted that and nothing was placed before this Court to establish that this finding of the Commissioner (Appeals) was wrong or erroneous and that gold falls within the category of prohibited goods and, therefore, this Court had proceeded to decide the appeal on the factual premise that gold does not fall within the category of ''prohibited goods'. As the Commissioner (Appeals) has held that the gold is not a prohibited item, it should be offered for redemption in terms ofSection 125of the Act and this finding was not assailed by the appellants before this Court.13. Sri Gorle has submitted that in absence of the aforesaid finding of the Commissioner (Appeals), which had been upheld by the Tribunal, having not been challenged by the appellants before this Court, the decision of this Court passed on the undisputed factual premise that gold does not fall within the category of ''prohibited goods', cannot be suffering from any error, much less from an error which is apparent from the fact of the record.14. Sri Gorle has further submitted thatSection 129B (2) of the Act provides that "The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner or the other party to the appeal". If the department was of the view that the aforesaid finding of the Tribunal was erroneous, it could have approached the Tribunal for review of the judgment under the aforesaid provision, which the department chose not to do and it chose not to assail the aforesaid finding even the appeal filed before this Court. In these circumstances, the orders passed by this Court cannot be termed as an order suffering from an error apparent on the face of record.15. We have considered the submissions made by the learned Counsel for the parties.16. In the present case, the Commissioner (Appeals) has held that the gold is not a prohibited item, it should be offered for redemption in terms ofSection 125of the Act. The Tribunal has recorded that the respondents had brought impugned Gold from Bangkok to Gaya International Airport without declaring the same to Customs Authorities and there was nothing to explain as to how the Customs authorities posted at Gaya International Airport could not detect such huge quantity of gold being removed from Gaya International Airport by passengers on their arrival and there was no explanation as to how the respondents procured gold before they were intercepted at Mughalsarai Railway Station and the Tribunal has dismissed the Appeals for the aforesaid reason and has affirmed the order passed by the Commissioner (Appeals) holding that the import of gold was not prohibited under the Foreign Trade Policy or any other law and, therefore, there is no sufficient ground for absolute confiscation of the gold.17. Nothing was placed before this Court to challenge the finding of the Commissioner (Appeals), which was upheld by the Tribunal, that Gold is not a prohibited item, and nothing was placed before this Court to establish that this finding of the Commissioner (Appeals) was wrong or erroneous.18. Even if the goods in question had been brought into India without following the conditions prescribed therefore and those fall within the category of prohibited condition,Section 125of the Act provides that the Adjudicating Officer may give to the owner of such goods an option to pay fine in lieu of confiscation.Section 128A of the Act confers powers on the Commissioner (Appeals) to pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. In the present case, the Commissioner (Appeals) has modified the order of absolute confiscation by imposing penalty in lieu thereof, which was well within his power as perSection 128A. The Tribunal has affirmed the order of the Commissioner (Appeals). This Court dismissed the further Appeal filed by the Department, finding no illegality in the judgment passed by the Tribunal.19. In view of the aforesaid discussion, we are of the view that the order passed by this Court refusing to interfere with the aforesaid order passed by the Tribunal does not suffer from any error, much less from an error apparent on the face of the record.20. The review application lacks merits and, accordingly, the same is dismissed.[Subhash Vidyarthi, J.]  [Devendra Kumar Upadhyaya, J.]  \n \n\n \nOrder Date :-  5th May, 2023.Pradeep/-