MOLOK BOLOKY Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) MRS . Molok Boloky has filed this Appeal against confiscation of diamonds seized from her possession and imposition of penalty.

(2.) SHRI C. Hari Shankar, Ld. Advocate, mentioned that the Appellants was off -loaded from an Iranian Airway flight on 13.10.2002 and the diamonds were found in a pickle jar in the checked in baggage of the Appellants; that the Commissioner, in the impugned Order, has relied on Paras 2.2, 2.31 and 4.4.15 of the EXIM Policy 2002 -2007 and on Para 4.81 of the Handbook of Procedure; that the Commissioner has also mentioned about contravention by the Appellants of the Export Baggage Rules, 1978 which the Appellant has not been able to trace; that a specific submission to this effect was made before the Commissioner, with a request to make available the said Rules; that the Commissioner has confirmed the violation of the said Export Baggage Rules, 1978 without disclosing them to the Appellant. He, further, mentioned that the Commissioner has held as under:

(3.) THE learned Advocate submitted that the confiscation of the seized diamonds is ab initio illegal; that the Supreme Court in CC v. Prayag Exporters Pvt. Ltd., has upheld the view of the Tribunal in Prayag Exporters Pvt. Ltd. v. CC, Mumbai, 2000 (121) ELT 819 (Tri) that Clause (d) of Section 113 of the Customs Act does not apply in the case of overvaluation of the goods tendered for export. The Supreme Court has held that "admittedly, goods in question are not prohibited for export and no export duty is leviable on the said goods." He contended that the same reasoning applies in the case of the Appellant as neither diamonds are dutiable nor prohibited for export and accordingly they could not be confiscated under Section 113 (d) of the Customs Act. He also referred to the decision in the case of Anita International v. CC, 1993 (65) ELT 201 (Cal). He also contended that the decision of the Supreme Court in the case of Om Prakash Bhatia v. CC, Delhi, ) is not applicable to the facts of the present matter since in the said decision, provisions of Section 18 of the Foreign Exchange Regulation Act were considered as imposing prohibitions which is not invoked in the present case; that in the present matter only prohibition invoked is IEC Code having not been obtained by the Appellants; that it has been held in the following cases that non -possession of an IEC number does not render the import/export illegal and that confiscation on this ground is not justified (1) Laser Sight (India) P. Ltd. v. CCE, 1999 (110) ELT 935 (2) CC v. Shipping and Trading Association P. Ltd., 2001 (128) ELT 250 (3) Dr. Mahesh Kedia v. CC, 2002 (141) ELT 736