M. Gouri Shankar Murthy, Member (J)
1. In this Revision Application under Section 131 of the Customs Act, 1962, as it was at the relevant time, and transferred to the Tribunal pursuant to Section 131B of the Customs Act, as amended by Finance Act, 1980 (44 of 1980), the admitted facts are as follows:
(a) The Appellant imported into India on 8.4.82 about 117 Gms. of gold and Indian currency amounting to Rs. 3001/- together with 30 other articles in his baggage and declared all of them to the Customs Officers in terms of Section 77 of the Customs Act;
(b) It was only in regard to the 30 other items of the baggage and not the gold and Indian currency for which he obtained a detention receipt for re-export out of India, in terms of Section 80 of the Customs Act;
(c) In consequence of the declaration of the gold and Indian currency as stated supra and his failure to include the same in his request for detention for re-export, a spot adjudication of the gold and currency was made;
(d) In as much as the import of gold and Indian currency was totally prohibited except with the prior permission of the Reserve Bank of India, the Adjudicating Authority proceeded to confiscate the same in terms of Section 11D of the Customs Act, 1962. He also levied a penalty in a sum of Rs. 5000/- on the Appellant under Section 112 of the said Act;
(e) An appeal to the Appellate Collector had merely resulted in an option given to him to redeem the Indian currency on payment of a fine of Rs. 1500/-.
(f) The revision which has been heard by us as if it were an Appeal pursuant to Section 131B of the Customs Act was the sequel.
2. It was, inter alia, contended by the learned Counsel that-
(a) the Appellant had, admittedly, made a true declaration of the gold and currency in question before the appropriate officer;
(b) once he so did, the gold is not liable to confiscation in terms of Section 111D of the Customs Act 1962, since he cannot be said to have imported or attempted to have imported it into India clandestinely. Reliance was placed on 1970 Crl.L.J. 417 Union of India v. Khalil Kecherim and 1981 ECR ID and 1981 ELT 153 (Mad.) K.R. Ahmed Shah v. Additional Collector of Customs. Madras and Ors.
(c) the Appellate Collector was in error in-
(i) holding that the gold and Indian currency in question cannot be allowed to be re-exported Under Section 80 of the Customs Act since the import thereof is prohibited; and
(ii) assuming that in 1970 Crl.L.J. U.O.I. v. Khalil Kecherim prohibited goods were not imported and in distinguishing the said case from the facts of the instant case on that ground;
(d) the Appellant had requested the proper officer to detain the gold at the Airport till he got the permission from the Reserve Bank of India for its import and if he failed to get such permission he would take the gold back at the time of his departure. His request was not accepted although he was allowed to re-export other items as per the detention receipt;
(e) in several other cases involving the same facts re-export was permitted.
3. We heard the counsel for the Appellant as well as the Departmental Representative for the Respondent.
4. Admittedly, the Appellant requested for the detention of as many as 30 articles as per the detention receipt in terms of Section 77 of the Customs Act, 1962. If indeed, he wanted that the gold should also be detained either for purposes of re-export or for obtaining the requisite permission from the Reserve Bank of India, as alleged, it is inexplicable as to why the gold and the currency were also not included in the detention receipt. On the contrary, he proceeded to face adjudication on the ground that he had come to India to get married and to attend the marriage of his sister and the gold was brought for making ornaments.
5. A perusal of the cases cited would reveal that in both of them there was a definite request for detention in terms of Section 80 of the Customs Act and the detention receipt in respect of the prohibited goods was, indeed, issued. The ratio of the aforesaid cases is that the goods are not liable to confiscation once a declaration has been made in terms of Section 77 and a detention receipt for re-export was obtained in terms of Section 80 of the Customs Act, 1962. While, therefore, it may be that the Appellate Collector was in error in distinguishing the said cases on the ground that the goods imported in the said cases were not such that their import was totally prohibited, it would still appear that the ratio of the aforesaid decision is inapplicable to the facts of the instant case.
6. The contention that he had merely requested the Baggage Officer at the Airport to detain the gold till he got the permission from the Reserve Bank of India, appears to be an after-thought. Even so, there is no reason as to why he did not include the same in the detention receipt made out for the other goods.
7. The counsel for the Appellant cited some cases in which the Board as well as the Appellate Collector of Customs had allowed re-export of prohibited goods in terms of Section 80 of the Customs Act, 1962, merely on the ground that they have been declared. It is not clear from the copies of the orders perused if there was in those cases a request in terms of Section 80 as well. We are not, however, bound by those orders and just because any such orders are made earlier, it does not mean that we should make a similar order in this case, even though there is no warrant for it.
8. There are no merits in the Appeal and, accordingly, it deserves to be dismissed. However, in view of the declaration made in terms of Section 77 of the Customs Act, 1962, by the Appellant suo molo, we reduce the penalty from Rs. 5000/- to Rs. 1,500/-. Consequential refund may accordingly be made.