JUDGMENT
1. The petitioners who are related to each other but claim that they do not belong to the same family and live in different houses landed at Delhi Airport on 2nd May, 1983 by Air India Flight No. AI-301 and reported for clearance of customs in the Red Channel. Petitioner No. 1 who was standing first in the queue declared to the Customs Authorities that he was carrying one V.C.R. (National) with 300 other small items for his personal use and for the use of his family members. He was directed to pay a duty of Rs. 4000/- at the Cash Counter. He, accordingly deposited the duty at the Cash Counter. However, when the Customs Authorities checked petitioners 2 to 5, it was found that they were carrying three V.C.R.s (National), 12 blank video cassettes, 1 Kenica C-35 Camera and 2 Video Games. The Assistant Collector, Air Customs, Delhi Airport confiscated the said goods under Section 111 of the Customs Act, 1962 and valued the goods at Rs. 13,600/- and imposed a personal penalty of Rs. 4,000/- under Section 112 of the said Act vide spot adjudication Order No. 1935 dated 2nd May, 1983.
2. The case of the petitioners is that under the Baggage Rules, each of the petitioners were entitled to import certain items without payment of duty up to a limit of Rs. 1,200/- each and since the V.C.R.s imported by them were not allowed to be exempted even under the Baggage Rules, they had to declare these V.C.R.s on which they were always willing to pay the duty. However, even before petitioners 2 to 5 passed through the Red Channel, the Customs Authorities treating petitioner No. 1 and other petitioners as members of the same family wrongly allowed one V.C.R. and confiscated the other V.C.Rs. The petitioners, therefore, filed an appeal before the Collector of Customs (Appeal), New Delhi who by his order dated 6th June, 1983 dismissed the appeal again on the wrong interpretation of the Baggage rules without affording opportunity of personal hearing to the petitioners. The petitioners, therefore, had to file a revision petition before the Central Government which was also dismissed on 22nd October, 1984 on the basis that the petitioners had represented themselves to the customs for clearance together as a family and, therefore, the declaration made by petitioner No. 1 was not a full declaration. The Central Government, however, reduced the penalty from Rs. 4,000/- to Rs. 2,000/- but disallowed the petitioner’s prayer for setting aside the confiscation order.
3. Learned counsel for the petitioners submitted that the whole approach of the Customs Authorities was wrong because the petitioners though may have been related to each other were not members of the same family and should have been checked as individuals and even if petitioner No. 1 had declared only one V.C.R., the other members were standing in the Red Channel and were ready and willing to pay the customs duty.
4. The case of the respondent is that when the petitioners landed at Palam Airport, they declared themselves as one family and the goods of the five passengers were declared to be worth Rs. 10,250/- collectively and the petitioners were permitted free allowance admissible under the Baggage Rules to the extent of Rs. 6,250/- i.e. Rs. 1,250/- per passenger. Since only one V.C.R. was declared, the petitioners were asked to pay Rs. 6,800/- as customs duty for the value of goods in excess of the free allowance. However, on checking the baggage, it was found that apart from one V.C.R. declared by the petitioners, there were three other V.C.R.s, 12 video cassettes, 1 Camera and 2 video games which were concealed by the petitioners. It is not disputed by the respondents that if the petitioners had individually declared their VCRs and it was found by the Customs Authorities that these VCRs were brought by the petitioners for their bona fide use, the same could have been cleared on payment of the requisite customs duty. It was submitted that the VCRs were confiscated because the petitioners had made a false declaration.
5. On perusal of the two orders, namely the appellate order dated 6th June, 1983 passed by the Collector of Customs (Appeal) and the revision order dated 22nd October, 1984 of the Central Government. I find that the respondents had all throughout treated the case of the petitioners as a case of false declaration. There is, therefore, no substance in the argument of the learned counsel for the petitioners that the whole approach of the respondents was wrong in disallowing the clearance of the three VCRs found in the baggage of petitioners 2 to 5 on the basis that petitioners No. 1 to 5 belong to the same family. No doubt, if the respondents had found that the VCRs imported by the petitioners were not for their bona fide use, even then the clearance of these goods could be refused by the respondents even if the petitioners were willing to pay the duty because that is the requirement of law. However, in the present case, there was no question of considering the bona fides of the petitioners because Petitioner No. 1 represented that all the petitioners were members of the same family and declared only one V.C.R. If it is a case of false declaration, then whether they belong to one family or they arrived as individuals actually did not make any difference.
6. However, there is one aspect of the matter which in my opinion, appears to have been missed by all the authorities below. Section 125 of the Customs Act, 1962 provides that the adjudicating officer has the discretion to release the prohibited goods by imposing fine in lieu of confiscation. Section 125 of the Customs Act reads as follows :-
“S. 125(1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, given to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit :
Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon.
(2) For the removal of doubts it is hereby declared that any fine in lieu of confiscation of goods imposed under sub-section (1) shall be in addition to any duty and charges payable in respect of such goods.”
7. I find that in the present case, the petitioners were not given the option to get the goods released by paying fine in lieu of confiscation. In this view of the matter, in my opinion, the proper course is to remand the matter back to respondent No. 3 Collector of Customs (Appeal) to consider whether the petitioners should be given an option to get the goods released by payment of fine in lieu of confiscation. Furthermore, since the case of the petitioner is that they were all throughout under the impression that the goods were confiscated because one family would be allowed to clear only one V.C.R. and if they had known that the Customs Authorities were treating this as a case of false declaration, they would have been able to prove to the contrary, in my opinion, since the Authorities are going to reconsider the matter for giving an option, it will be in the interest of justice to also give the petitioners one more opportunity to show that it was not a case of false declaration.
8. In the result, the petition is partly allowed to the extent indicated herein above and the impugned orders dated 2nd May, 1983, 6th June, 1983 and 22nd October, 1984 are set aside. No costs.