ORDER
Chittaranjan Satapathy, Member (T)
1. Heard both sides. Shri Z.B. Nagarkar, learned Consultant appearing for the appellants states that the appellants are not challenging the confiscation but they seek option to redeem the confiscated gold through these miscellaneous applications for rectification in view of the Tribunal’s order No. A/104 to 107/WZB/2004/C-I dated 4.2.04, where options to redeem gold have been given holding the same to be non-prohibited items.
2. Shri R.B. Pardeshi, learned DR appearing for the department states that the impugned gold has to be held as prohibited in view of the decision of the Hon’ble Supreme Court in the case of Sheikh Mohd. Omer v. Collector of Customs, Calcutta 1983 ELT 1439 (SC), which inter alia holds as under:
This takes us to the question whether by importing the mare ‘Jury Maid’ the appellant contravened Section 111(d) read with Section 125 of the Act. It was urged on behalf of the appellant that expression ‘prohibition’ in Section 111(d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by Clause 3 of the Imports Control Order, 1955. According to the learned Counsel for the appellant Clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Section 111(d) of the Act. While elaborating his argument the learned Counsel invited out attention to the fact that while Section 111(d) of the Act uses the word ‘prohibition’ Section 3 of the Imports and Exports (Control) Act, 1947 takes in not merely prohibition of imports and exports, it also includes ‘restrictions or otherwise controlling’ all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with ‘restrictions or otherwise controlling’ separately from prohibition. We are not impressed with this argument. What Clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to ‘any prohibition imposed by any law for the time being in force in this country’ is liable to be confiscated. ‘Any prohibition’ referred to in that section applies to every type of ‘prohibition’. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression ‘any prohibition’ in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Import and Exports (Control) Act, 1947 uses three different expressions ‘prohibiting’, ‘restricting’ or ‘otherwise controlling’ we cannot cut down the amplitude of the word ‘any prohibition’ in Section 111(d) of the Act. ‘Any prohibition’ means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition.
3. Since import of gold is now allowed subject to conditions and restrictions, in view of the cited decision of the Hon’ble Supreme Court, the impugned gold is to be treated as prohibited goods and the order of absolute confiscation passed by the lower appellate authority, is to be held as legal and proper. Secondly, the appellants are seeking a review of the order passed by this Bench earlier through these miscellaneous applications for rectification, which is not permissible. Hence, the miscellaneous applications seeking rectification of the Bench order dated 5.7.2005 are rejected on both counts.
(Dictated and pronounced in Court)