JUDGMENT
Lingaraja Rath, J.
1. Though this case is listed for admission yet since the question involved is simple the learned Standing Counsel for the Central Government has been given notice of its final disposal at the admission stage. Filling of counter-affidavit is not necessary, as is also conceded by him, since the relief sought for is a writ of certiorari against orders passed by the statutory authority and by the Government in revision.
2. The petitioner had arrived from Saudi Arabia on 7.9.1994 and failed to declare 320 grams of gold bits concealed in the handle of his brief-case. In the proceedings started against him the gold was confiscated under orders of the Deputy Collector of Customs on the same day. His appeal before the Commissioner of Customs, failed as also the revision before the Government. Both the authorities took the view that since the conduct of the petitioner was not only evasion of duty but also of concealment, he was not entitled for only levy of any penalty and that the gold has to be confiscated. The learned Counsel for the petitioner urges that he was carrying the gold for the purpose of the marriage of his younger sister, that confiscation of the entire gold causes great hardship, and that instead some penalty should be imposed. We are afraid that such discretion in substituting a different order than confiscation is not available to be made by us and hence this plea must be rejected.
3. But, all the same, we find the petitioner is entitled to a different relief. The order of confiscation is made under Section 111 of the Customs Act, 1962 on account of concealment Section 125 requires that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Rule 9 of the Baggage Rules, 1978 framed under Section 79(2) of the Customs, Act, 1962 lists Gold in any form other than ornaments in Appendix B of the Rules as articles which shall not be imported free of duty. Hence gold in the form other than ornaments is entitled to be imported on payment of duty. Attempt to import gold unauthorisedly will thus come under the second part of Section 125(1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay (fine) in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. A perusal of the order of the Deputy Collector of Customs shows him to have not kept this distinction in mind and to have straightaway proceeded to confiscate the gold without grant of opportunity to the petitioner to pay (fine) in lieu of confiscation. The order passed by the Deputy Collector of Customs is as under :
“Record of Personal Hearing and Findings : The passenger states that for his sister’s marriage he has brought the gold and on the advice from one of his friends he concealed the gold in the suitcase handle to avoid payment of duty. The passenger as such has deliberately concealed the gold to avoid detention and payment of duty. The briefcase used to conceal the gold is also liable for confiscation
xxxx xxxx xxxx
xxxx xxxx xxxx
(The earlier portion of the printed form of the order, marked xxxxxx were left blank and do not form part of the Order).
I also order absolute confiscation of the goods (gold) valued Rs. 1,20,969 under Section 111(d), (l), (m) and (o) of Customs Act, 1962 read with Section 3(3) and Section 4 of Foreign Trade (D & R) Act 1992. I further impose a penalty of Rs. 5,000/- (Rupees five thousand only) under Section 112 of Customs Act, 1962 for importing goods in contravention of the restriction.
I also confiscate the briefcase of NCv used for concealment of the said gold.
Sd/-
Xxxx
Deputy Collector of Customs.”
It is apparent that the distinction and the non-compliance with the provisions of law as pointed out earlier was not kept in view either by the original, or the appellate authority or the revisional authority.
4. In that view of the matter, we set aside the orders of the Assistant (sic should be Deputy) Collector of Customs and the appellate as well as the revisional authorities and remand the matter to the Deputy Collector of Customs, 4th respondent herein to allow opportunity to the petitioner to pay (fine) in lieu of confiscation such sum as he decides fit and decide the matter according to law. To facilitate disposal, we direct the petitioner to appear before the Deputy Collector of Customs on the 12th of August, 1996 on which date the Deputy Collector of Customs shall proceed with the case. Copy of this order be forthwith transmitted to the respondents.
5. The Writ Petition is allowed in part. We however make no order as to costs.