The discretion to grant an option to pay fine under Section 125 of the Customs Act is not mandatory and depends on the circumstances of each case, particularly when the goods exceed legal limits.

ORDER :

(ABDUL QUDDHOSE, J.)

The petitioner has filed this writ petition challenging the impugned orders passed by the respective authorities on the ground that the petitioners ought to have been given an option to pay fine as per the provisions of Section 125 of the Customs Act, 1962 (in short “the Act”).

2. The learned counsel for the petitioners drew the attention of this Court to Section 125 of the Act and would submit that if the goods, which have been confiscated, are not prohibited items under the Customs Act, the respondents will have to give an option to pay fine. He also drew the attention of this Court to the impugned orders passed by the respective respondents and would submit that the option to pay fine has not been given, eventhough Section 125 of the Act provides for the same.

3. The learned counsel for the petitioners also drew the attention of this Court to the following authorities rendered by a learned Single of this Court:-

(a) N.Kaliyamoorthy Vs. The Commissioner of Customs, Chennai , and others [ W.P.Nos.61 of 2022, etc (batch), dated 02.01.2025 ]; and

(b) Smt.Jhansi Rani Vs. The Principal Commissioner of Customs, Chennai , and others [ W.P.No.15217 of 2021, dated 02.01.2025 ].

4. Relying upon the aforesaid decisions, the learned counsel for the petitioners would submit that since gold is not a prohibited item falling under Section 2(33) of the Act, the option to pay fine as per the provisions of Section 125 of the Act ought to have been given to the petitioners.

5. On the other hand, the learned standing counsel appearing for the respondents would submit that the law is now well settled that in case an item brought into India is a restricted item and the same was concealed by a person, who had brought the said item into India, it is a prohibited item falling under Section 2(33) of the Act.

6. In support of his contention, he drew the attention of this Court to a judgment of the Division Bench of this Court in Commissioner of Customs (Air) Vs. P.Sinnasamy and others [ MANU/TN/2000/2016 ] and would submit that the Division Bench has considered various decisions of the Hon'ble Supreme Court and has come to the conclusion that the option to pay fine to be given by the authorities is not a mandatory one and it depends upon the facts and circumstances of each case and is only discretionary. He also drew the attention of this Court to a judgment of the Division Bench of this Court in Commissioner of Customs (AIR), Chennai-I Vs. Samynathan Murugesan [ MANU/TN/109/2009 ], discussed in paragraph No.60 of P.Sinnasamy's case (cited supra), and would submit that the said judgment was upheld by the Hon'ble Supreme Court reported in 2010 (254) ELT A15(SC) [Samyanathan Murugesan Vs. Commissioner of Customs (AIR)]. He would further submit that as seen from the decision relied upon by the Division Bench of this Court in P.Sinnasamy (cited supra), it is clear that the gold may not be one of the enumerated goods as prohibited goods, still, if the conditions for such import are not complied with, then import of gold would squarely fall under the definition “prohibited goods” as adumbrated in Section 2(33) of the Act.

7. The learned standing counsel for respondents would further submit that as seen from those decisions referred to supra, the adjudicating authorities have to consider two aspects, namely, (a) eligibility of the passengers to import the goods; and (b) whether such passengers had fulfilled the conditions of import or export, and if there is any restriction on import or export, it has to be treated as a prohibited item. He would submit that in the case on hand, the petitioners had concealed the gold bars in betel nut flakes and they did not declare the same to the customs. Therefore, he would submit that the intention of the petitioners was only to smuggle the gold bars into India and hence, the ratio laid down by the Hon'ble Supreme Court as well as this Court in P.Sinnasamy's case (cites supra) is squarely applicable to t