Union of India v. Dhanak M. Ramji & Ors.

Mr.R.V. Desai, Sr. Advocate with Mr.R.B. Pardeshi for the petitioner. Mr.J.A. Udaipuri i/b M/s.Udaipuri & Co. for the respondents. ... WITH WRIT PETITION NO.1022 of 2009 Dhanak M. Ramji versus Union of India & Anr. .. Petitioner .. Respondents ... Mr.R.V. Desai, Sr. Advocate with Mr.R.B. Pardeshi for the petitioner. Mr.J.A. Udaipuri i/b M/s.Udaipuri & Co. for the respondents. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 4th August 2009 P.C:-

Rule in both the petitions. Heard forthwith. 2

The department had approached this court against the order of the Tribunal whereby the Tribunal after holding that the confiscated goods can be redeemed, imposed a find of Rs.2.50 lakhs. The Tribunal proceeded on the footing that these are not prohibited goods. In this petition we are only concerned with the jewellery. We are not concerned with the issue of foreign currency.

Writ Petition no.1022 of 2009 was filed by respondent in Writ Petition (Lodging) no.1397 of 2009. It is his submission that though there is an order for redemption of the goods on payment of fine, the respondents had failed to allow him to redeem the goods and consequently the petition.

Considering that the controversy and release of the goods depends on the disposal of Writ Petition (Lodging) no.1397 of 2009, we have heard the said petition first.

At the hearing of this petition filed on behalf of the revenue, learned counsel submits that these were prohibited goods. The respondent is not the owner of the goods and as such, the Tribunal exceeded its jurisdiction in directing release of the goods in favour of the respondent by paying redemption fine. 3

We have perused the order of Commissioner of Customs dated 12th December 2005. In paragraph no.19 there is a clear statement by the respondent herein that he was claiming ownership in the goods. No other person had claimed ownership in the goods. Under section 125(1) of the Customs Act 1962, provides that in a case where there is an order for redemption of the goods on payment of fine where the owner is not known, the person from whose possession or custody, such goods have been seized is entitled to apply and be given the goods.

In our opinion, the issue whether the petitioner in W.P. 1022/09 herein, has established his title to the goods is not relevant. No other person has claimed title in the goods. The petitioner alone has claimed title in the goods and apart from that it is the petitioner who was found in possession of the goods. In these circumstances, we cannot find any error of law in the finding recorded by the Tribunal that the application by the petitioner for release was maintainable. The goods by themselves were not prohibited but became prohibited by virtue of breach of law by petitioner herein. In the circumstances, we also do not find any error of law committed by the Tribunal in directing the release of the confiscated goods on payment of fine. There was discretion, which discretion has been properly exercised. 4

However, in our opinion, the Tribunal itself decided the quantum of fine. In our opinion, that ought to have been left to the Commissioner (Customs). In the light of the above though we are upholding the order of the Tribunal in the matter of redemption fine as also the release of goods in favour of the respondent herein. In so far as quantum of fine is concerned, we set aside the same. We remand the matter back to the Commissioner of Customs (Air Intelligence Unit) to decide the same on his own merits.

In view of the order passed in Writ Petition (Lodging) no.1397 of 2009, no further order is required to be passed in Writ Petition no.1022 of

2009. Both the petitions are accordingly disposed of in terms of what is stated above. Commissioner (Customs) is directed to complete the entire exercise within six weeks.

Rule made absolute accordingly. No order as to costs. (D.G. KARNIK, J)

(F.I. REBELLO, J)