Commissioner Of Customs, Lucknow (In Cusa 7 Of 2019 ) vs. Sri Rajesh Jhamatmal Bhat And Another

Held

The Court held that the review application lacks merit. It found that the Commissioner (Appeals) had held that the gold was not a prohibited item and should be offered for redemption under Section 125 of the Customs Act, 1962. This finding was affirmed by the Tribunal, which dismissed the appeals for absolute confiscation, stating that the import of gold was not prohibited under the Foreign Trade Policy or any other law. The Court noted that nothing was placed before it to challenge the Commissioner (Appeals)'s finding that gold was not a prohibited item, nor was it established that this finding was wrong or erroneous. Even if the goods were brought in without following prescribed conditions, Section 125 allows for an option to pay a fine in lieu of confiscation. The Commissioner (Appeals)'s modification of the absolute confiscation order by imposing a penalty was within his powers under Section 128A. The Court concluded that its previous order refusing to interfere with the Tribunal's judgment did not suffer from any error apparent on the face of the record.

Facts

This is a review application filed by the Commissioner of Customs, Lucknow, seeking to review a judgment passed by the High Court in a Customs Appeal. The original appeal was filed against an order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) which upheld an order by the Commissioner (Appeals). The Commissioner (Appeals) had allowed the respondents to redeem confiscated gold on payment of a redemption fine. The High Court, in its earlier judgment, had dismissed the appeal filed by the Commissioner of Customs, finding no illegality in the CESTAT's order. The review is sought on grounds of apparent errors on the face of the record, including non-consideration of Section 2(33) of the Customs Act and Supreme Court judgments, and failure to decide a specific question of law.

Key Issues

1. Whether the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) was correct in upholding the order of the Commissioner (Appeals) without addressing the findings of the Adjudicating Authority regarding the absolute confiscation of smuggled gold and foreign currency? (Question A). The petitioner argued that the CESTAT and the High Court failed to consider that non-declaration of goods makes them 'prohibited goods' under Section 2(33) of the Customs Act, 1962, and relied on Supreme Court judgments in Om Prakash Bhatia v. Commissioner of Customs and Sheikh Mohd. Omer v. Collector of Customs. The respondents argued that the High Court proceeded on the factual premise that gold was not a prohibited item, a finding of the Commissioner (Appeals) upheld by the Tribunal, which was not assailed by the petitioner. They also contended that the petitioner could have approached the Tribunal for review under Section 129B(2) of the Act.