IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: Pronounced on:

10.08.2023 19.02.2024 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P.No.6734 of 2022 Rayavarapu Sri Devi. ... Petitioner Vs.

1. The Principal Commissioner of Customs (Adjudciation-Air), Chennai I Commissionerate, New Custom House, Meenambakkam, Chennai – 600 027.

2. The Joint Commissioner of Customs (Adjudciation-Air), Chennai I Commissionerate, New Custom House, Meenambakkam, Chennai – 600 027.

3. The Principal Commissioner (RA) &

Ex-Officio Additional Secretary to the Government of India, 8th Floor, Centre-1, World Trade Centre, Cuffe Parade, Mumbai – 400 005. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the Impugned Order No.282-283/2021-CUS (SZ)/ASRA dated 25.10.2021 in F.No.373/272/B/2020-RA/6218 and in F.No.380/56/B/SZ/2020-RA/6218 passed by the third respondent and quash the same and direct the second respondent to return the foreign currency of USD 67600 to the petitioner.

For Petitioner : Mr.Hari Radhakrishnan For Respondents : Mr.K.S.Ramaswamy Central Government Standing Counsel

ORDER

I have considered the arguments advanced by the learned counsel for the petitioner and the learned Central Government Standing Counsel for the respondents.

2. I have also perused the Impugned Orders dated 25.10.2021 passed by the third respondent as a revisional authority under the provisions of the Customs Act, 1962.

3. This writ petition has been filed to quash the Impugned Order dated 25.10.2021 passed by the third respondent respondents under Section 129DD of the Customs Act, 1962.

4. The aforesaid order was passed pursuant to a Revision Petition filed by the Principal Commissioner of Customs (Adjudication-Air), Chennai I Commissionerate, the first respondent herein against the Order – in – Appeal Airport. Cus. I No.206 of 2020 (F.No.C4/I/99/O/2020- AIR) dated 20.08.2020 of the Commissioner of Customs (Appeals-I), Chennai.

5. By the Impugned Order, the third respondent has accepted the Revision Petition filed by the first respondent herein against the order of the aforesaid Order of the Commissioner of Customs (Appeals-I), Chennai.

6. Operative portion of the Impugned Order reads as under:-

“15. Once goods are held to be prohibited, Section 125 still provides discretion to consider release of goods on redemption fine. Hon'ble Supreme Court in case of M/s. Raj Grow Impex has laid down the conditions and circumstances under which such discretion can be used. The same are reproduced below.

71. Thus, when it comes to discretion, the exercise thereof has to be guided by law; has to be according to the rules of reason and justice; and has to be based on the relevant considerations. The exercise of discretion is essentially the discernment of what is right and proper, and such discemment is the critical and cautious judgment of what is correct and proper by differentiating between shadow and substance as also between equity and pretence. A holder of public office, when exercising discretion conferred by the statute, has to ensure that such exercise is in furtherance of accomplishment of the purpose underlying conferment of such power. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion; such an exercise can never be according to the private opinion.

71.1. It is hardly of any debate that discretion has to be exercised judiciously and, for that matter, all the facts and all the relevant surrounding factors as also the implication of exercise of discretion either way have to be properly weighed and a balanced decision is required to be taken.

16. The Government finds that the appellate authority has allowed to redeem the foreign currency on payment of redemption fine of Rs. 4,00,000/- under Section 125 of the Customs Act, 1962 which was ordered to be paid within120 days of the communication