The main legal point established in the judgment is that the gold in question was not a prohibited item and should be offered for redemption in terms of Section 125 of the Customs Act.

JUDGMENT :

Subhash Vidyarthi, J.

1. Heard Sri. Dipak Seth, Advocate, the learned counsel for the appellant-Commissioner of Customs, Aliganj, Lucknow and Sri. Yogesh Kumar S. Gorle, Advocate, the learned counsel appearing for the respondents and perused the records.

2. The instant appeal under Section 130 of the Customs Act, 1962 (which will hereinafter be referred to as ‘the Act’) has been filed against the judgment and order dated 13.02.2019, passed by the Customs, Excise and Service Tax Appellate Tribunal, Allahabad dismissing Customs Appeal Nos. C/71388-71389 of 2018, which were filed by the appellant -Commissioner of Customs against the order dated 27.08.2018, passed by the Commissioner (Appeals), Customs, GST and Central Excise, Lucknow, whereby the respondents were given an option to redeem the confiscated gold on payment of redemption fine.

3. Briefly stated, the facts of the case are that on 11.12.2014 the Government Railway Police (G.R.P.) Mughalsarai had called and informed the officers of the Directorate of Revenue Intelligence (DRI) Varanasi that the respondents had been intercepted by the G.R.P. and during search gold bars were recovered from the specially designed cavities made in the shoes of the respondents. The gold bars were found to be weighing 4,076 grams and valued at Rs.1,09,98,018/-only. On 30.12.2015 the Additional Commissioner, Customs (P.) Commissionerate, Lucknow, had passed an order for absolute confiscation of the seized gold bars and some foreign currencies recovered from the respondents. Further a penalty of Rs.10,00,000/- was imposed on each of the respondents.

4. The respondents filed an appeal against the aforesaid order and the Commissioner (Appeals) partly allowed the appeal by means of his order dated 27.08.2018. The Commissioner held that the gold is not a prohibited item as its import was not prohibited under the foreign trade policy or in any other law for the time being in force. The only offence made out in respect of the Gold bars is its non-declaration in the disembarkation slip in contravention of Section 77 of the Act rendering the same liable to confiscation under Section 111 (1) of the Act. The Commissioner (Appeals) held that there is no sufficient ground for absolute confiscation of the gold and he gave the respondents an option to redeem the confiscated gold on payment of redemption fine of Rs.25,00,000/-and he further held that the respondents shall be liable to pay the applicable duty and charges in respect of the confiscated gold.

5. The Commissioner of Customs filed Customs Appeal Nos. C/71388-71389 of 2018 before the Customs, Excise and Service Tax Appellate Tribunal, Allahabad against the aforesaid order dated 27.08.2018 passed by the Commissioner (Appeals).

6. The Customs, Excise and Service Tax Appellate Tribunal, Allahabad, dismissed the Appeals by means of an order dated 13.02.2019 holding that from the entire proceedings, it could not be found out as to how the customs authorities posted at Gaya International Airport could not detect such a huge quantity of gold being removed from the Airport by the respondents on their arrival and the respondents did not give any explanation as to how they removed the gold on arrival from Bangkok and as to how they procured the gold before they were intercepted at Mughalsarai Railway Station. The Tribunal dismissed the appeal filed by the Revenue.

7. By the same order dated 13.02.2019, the Tribunal partly allowed the appeal filed by the respondents and reduced the redemption fine from Rs.25,00,000/-to Rs.15,00,000/-and the penalty was reduced from Rs.10,00,000/- to Rs.5,00,000/- each.

8. The appellants have challenged the order dated 13.02.2019, passed by the Customs, Excise and Service Tax Appellate Tribunal, Allahabad only in so far as it relates to the decision of Customs Appeal Nos. C/71388 and 71389 of 2018, which were filed by the appellants. The appellant has not challenged the order dated 13.02.2019, passed by the Tribunal in so far