Whether customs duty payable if confiscated gold sold by revenue?

PJ/Case law/2014-15/2214

Case:- JOINT SECRETARY, M.F. (D.R.) VERSUS RAMA SUBBA REDDY ARAVA

Citation:- 2013 (294) E.L.T. 537 (Mad.)

Brief facts:-The respondent herein was detained having been found in possession of five gold biscuits on 25-11-1996. Gold weighing 582.8 grams was seized under mahazar, by an order, dated 9-12-1996. The gold biscuits were confiscated and a penalty of Rs. 5,000/- was imposed on the respondent. An appeal was filed by him before the Commissioner of Police. The Commissioner of Police in and by the order, dated 28-8-1997, was pleased to allow the appeal, permitting the respondent to redeem the confiscated gold on payment of fine of Rs. 15,000/- apart from the penalty of Rs. 5,000/-. However, being aggrieved against the order of the Commissioner of Police, the department had preferred a revision. The revisional authority, in and by an order, dated 11-3-1998, was pleased to allow the revision by setting aside the order passed in appeal. Accordingly, the original order passed by the Additional Commissioner of Customs, dated 9-12-1996, was restored. The respondent filed a writ petition before this Court. This Court in W.P. No. 9976 of 1998, in and by the order, dated 13-7-2006, remitted the matter to the first appellant for fresh consideration. Final orders were passed on 11-10-2006 by the first appellant. The first appellant took a lenient view and taking note of the liberalised policy pertaining to the import of gold, an option was given under Section 125 of the Customs Act, 1962, to the respondent to redeem the gold as per the order of the Commissioner of Appeals. The said order had been passed while confirming the findings of the original authority. However, the appellants sold the gold in the interugnum on 9-9-1997. The said order was passed even before the order passed by the appellant No. 1, on 11-3-1998, in the earlier occasion. Instead of complying with the order of the appellant No. 1, out of the sale proceeds of Rs. 2,62,500/- a deduction of a sum of Rs. 1,65,408/- has been deducted towards the customs duty, apart from the penalty and fine payable by the respondent. Thereafter, the respondent has come before this Court challenging the order of the Appellant No. 3, dated 12-9-2007. Consequently, the respondent has also challenged the order of the Appellant No. 2, dated 11-10-2006. The learned single Judge has passed an order directing the appellants to pay a sum of Rs. 2,42,500/- after deducting the penalty and fine amount of Rs. 15,000/- and Rs. 5,000/- respectively. Challenging the same the present writ appeal has been filed.

Appellant’s contentions:-The learned counsel appearing for the appellants would submit that in law, the respondent is duty bound to pay the customs duty payable. While passing orders the first appellant had confirmed the findings of the original authority. The order was passed only as the concession and therefore, the respondent is bound to pay the customs duty, apart from the fine and penalty.

Respondent’s contentions:- the learned counsel appearing on behalf of the respondent would submit that it is an unfortunate case, wherein, even before the revision was allowed and during its pendency the appellants have sold the gold without any authority . The appellants committed a serious error in effecting the sale. In view of the action of the appellants the respondent has been put into severe financial constraints. The question of payment of customs duty was never an issue in all the proceedings. Only for the first time it has been raised and without even affording an opportunity the said amount is sought to be deducted. The learned single Judge has considered the entire materials availabe on record and came to the right conclusion. In support of the above, the learned counsel has made reliance on the decision given in the case of Shabir Ahmed Abdul Rehman v. The Union of India and Others - 2009 (235)E.L.T.402 (Bom.).

Reasoning of judgment:- The facts narrated are not in dispute. Admittedly, the gold has been sold when the order passed by the Commissioner of Appeals in favour of the respondent, dated 28-8-1997 was in force. Merely, because a revision is pending the appellants ought not to have sold the gold. Be that as it may, the issue regarding the deduction towards the customs duty does not arise for consideration. Admittedly, the respondent has not been furnished with the gold. Therefore, there is no question of imposing the customs duty on the said respondent. Furthermore, the said plea has never been taken in any of the proceedings by the appellants. Considering the very same issue against the respondents, the Division Bench of the Bombay High Court in W.P. No. 2488 of 1998, dated 3-12-2008, has held as follows :
“11. The question then to be considered is, whether the petitioner is entitled to the sale proceeds after deducting duty, fine and penalty imposed upon the petitioner. Since the petitioner is seeking redemption of the confiscated gold, he cannot escape payment of fine and penalty. In fact, counsel for the petitioner offered to pay fine and penalty. As regards payment of duty is concerned, in our opinion, duty would be payable only if the gold was actually allowed to be redeemed. In the present case, what is being given is the sale proceeds and not the gold as such. In such a case, the question of paying duty in respect of the sale proceeds would not arise.”
Taking into consideration the facts and circumstances of the case and applying the ratio laid down by the Division Bench of the Bombay High Court in which the 1st appellant was one of the parties, we do not find any reason to interfere with the order of the learned single Judge as admittedly, the gold belonging to the respondent has been sold by the appellants and what is sought to be given is only the cash. In such view of the matter, they do not find any error in the order of the learned single Judge. Accordingly, they are dismissed. No costs.

Decision:- Appeal was dismissed.

Comment:- The analogy of the case is that deduction of Customs duty from sale proceeds of confiscated gold was not permissible as goods belonging to importer had been sold by Department and only cash was being given to them. The question of paying customs duty would not arise as the gold that was confiscated was not redeemed by the assessee and rather sale proceeds were being handed over to them after deducting the redemption fine and penalty. Moreover, the issue of customs duty was never raised before lower authorities and was raised in the Tribunal for the first time and so the same could not be considered.

Prepared by:- Monika Tak

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PJ/Case law/2014-15/2214

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