Calcutta High Court
Commissioner Of Customs (Airport & Acc) vs Shri Dilip Kumar Pal on 2 July, 2025
Author: T.S. Sivagnanam
Bench: T.S Sivagnanam
OD-12
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION
ORIGINAL SIDE
CUSTA/24/2025
IA NO: GA/1/2025, GA/2/2025
COMMISSIONER OF CUSTOMS (AIRPORT & ACC), KOLKATA
VS
SHRI DILIP KUMAR PAL
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM
AND
HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
DATE : 2nd July, 2025
Mr. Bhaskar Prasad Banerjee, Adv.
...for appellant
Mr. Avra Mazumder, Adv.(VC)
...for respondent.
The Court : This appeal has been filed by the revenue under Section 130
of the Customs Act, 1962 (the Act) challenging the Final Order No. 77261 of
2024, dated 24.10.2024, passed by the Customs Excise And Service Tax
Appellate Tribunal, Eastern Zonal Bench, Kolkata (Tribunal).
The revenue has raised the following substantial questions of law for
consideration :
i) Whether the Learned Tribunal erred in law and acted without jurisdiction
in deciding the Final Order No. 77261 of 2024, dated 24.10.2024 and not
deciding the miscellaneous application on merits vide Miscellaneous
2Order No. 75325 of 2025, dated 22.04.2025 taken out by the appellant,
when as per the proviso to Section 129A(1) of the Customs Act, 1962, no
appeal shall lie to the Learned Tribunal in respect of any order passed by
the Commissioner (Appeals) relating to any goods imported or exported
as baggage, and that the Learned Tribunal did not have jurisdiction to
decide any appeal in respect of any such order passed by the
Commissioner (Appeals) since the instant case deals with smuggling of
gold by a passenger secreted inside his body and falls under the purview
of baggage as per Rule 3(b) of the Baggage Rules, 2016 ?
ii) Whether the Learned Tribunal erred in not appreciating that the
Appellant sought to rectify the mistake apparent from record in the
Tribunal order dated 24.10.2024 wherein the Tribunal in clear
contravention of the law had returned a finding that the gold smuggled
by the Respondent, was not a prohibited item and that the said gold can
be released on payment of duty, redemption, fine and penalty, when the
import of Gold is regulated and controlled in terms of Section 5 of the
Foreign Exchange Management Act, 1999 read with the Foreign
Exchange Management (Current Account Transaction) Rules, 2000, and
that the importation of Gold in any form is regulated by the RBI and
regulated as per paragraph C.11 of the Master Direction on Import of
Goods and Services issued by the Reserve Bank of India under the FEMA
read with Section 9A of the Foreign Trade (Development and Regulation)
Act, 1992 allows the government to impose quantitative restrictions on
3imports, and Section 11(2) (f) read with Section 11(3) of the Customs Act,
1962 allows the government to impose restrictions inter alia on the
import of geld ?
iii) Whether the Learned Tribunal erred in law and fact and erred in not
appreciating that the Respondent did not declare the gold as per the
Customs Baggage Declaration Regulations, 2013 read with the Baggage
Rules, 2016, and also did not fulfil the basic eligibility criteria for the
import of gold as a passenger in terms of Notification No. 50/2017-
Customs dated 30.06.2017 specifically Sl. No. 356 read with Condition
No. 41 therein and the said smuggled gold was prohibited goods in terms
of Section 2(33) of the Customs Act, 1962 and such goods cannot be
released by the Customs department ?
iv) Whether the Learned Tribunal acted without jurisdiction and against the
provisions of law in entertaining the appeal of the Respondent and
passing the order dated 24.10.2024 on the ground of inherent lack of
jurisdiction as per the proviso to Section 129A(1) of the Customs Act,
1962 and also on merits by which the appeal of the Respondent has been
allowed by the Learned Tribunal ?
v) Whether the Learned Tribunal erred in law and fact that Appellant vide
the rectification application only sought to rectify the patent error of
jurisdiction apparent on record from the Learned Tribunal’s order dated
24.10.2024 questioning the jurisdiction of the Learned Tribunal in
deciding the appeal when the statute specifically bars the Learned
4
Tribunal from entertaining such appeal relating to baggage as per Rule
3(b) of the Baggage Rules, 2016?
vi) Whether the Learned Tribunal erred in law and acted without jurisdiction
in not following the earlier decisions of the Learned Tribunal in the cases
of Customs Appeal No. 76103 of 2023 culminating in Final Order No.
75052 of 2025 dated 14.01.2025 and Customs Appeal No. 75229 of 2021
culminating in Final Order No. 77173 of 2024 dated 22.10.2024 and
other judgments wherein the Hon’ble Supreme Court of India in the case
of Om Prakash Bhatia v. Commissioner of Customs reported at (2003) 6
SCC 161, has held that if the conditions prescribed for import or export
of goods are not complied with, then such goods would be considered to
be prohibited goods and in the case of Sheikh Mohd. Omer v. Collector of
Customs, Calcutta reported at (1970) 2 SCC 728, has clearly laid down
that any type of prohibition, which may be complete or partial, and even
a restriction on import, is to an extent, a prohibition and in this instant
case, restriction imposed on import of gold through passenger baggage is
a prohibition and thus the seized goods are prohibited goods?
vii) Whether the impugned orders dated 24.10.2024 and 22.04.2025 are
non-est and not maintainable in the eyes of law as the order dated
24.10.2024 has merged with the order dated 22.04.2025, and the order
dated 24.10.2024 was passed without jurisdiction by the Tribunal and
the order dated 22.04.2025 in the rectification application did not
appreciate that the order dated 24.10.2024 was completely without
5
jurisdiction as it contravened the proviso to Section 129A(1) of the
Customs Act, 1962 read with Rule 3(b) of the Baggage Rules, 2016?
There is a delay of 31 days in filing the appeal. We have perused the
affidavit filed in support of the condone delay application and we find that
sufficient cause has been shown by the Department for not preferring the
appeal within the period of limitation. Therefore, the delay in filing the appeal is
condoned. The application, GA/1/2025, is allowed.
The learned Tribunal by the impugned order has allowed the
respondent’s appeal and directed the release of gold which was confiscated
from the respondent who had carried the gold by concealing the same in the
shoes and shocks and by imposing a redemption fine of Rs. 2 Lakhs and also
reducing the penalty which was imposed on the respondent. Further, the
learned Tribunal has ordered that if gold has been sold, the sale proceeds of
the gold shall be refunded to the respondent after a deduction of redemption
fine and penalty and in such case no duty is payable by the appellant.
The Department filed an application under Section 129B(2) of the Act for
rectification of the mistake by contending that the appeal was not maintainable
before the Tribunal and in this regard, referred to certain notifications and also
the decisions of the coordinate Bench of the Tribunal which had accepted such
submission and refused to entertain an appeal. This miscellaneous application
has been dismissed by the learned Tribunal. Thus, the question which to be
decided would be whether the Tribunal could have dismissed the
6
miscellaneous application filed under Section 129B(2) of the Act as the
Department has raised issue regarding the jurisdiction of the Tribunal. Apart
from that, other question to be decided is whether the gold which was found
concealed in the personal effects of the respondent would be an act of
smuggling as defined in Section 2(39) of the Act which defines smuggling in
relation to any goods to mean an act of omission which would render such
goods liable to confiscation under Section 111 or under Section 113 of the Act.
Therefore, we find substantial questions of law are required to be decided
in this appeal. Accordingly, the appeal is admitted on the above substantial
questions of law.
Till the appeal is heard and decided, the order dated 24 th October, 2024
passed by the Tribunal shall remain stayed.
The stay application IA No: GA/2/2025 stands disposed of.
Though the stay application is formally disposed of, since all the
necessary documents are available in the stay application, the same be
retained with the records and be treated as an informal paper book and filing of
informal paper book is dispensed with.
(T.S. SIVAGNANAM, CJ. )
(CHAITALI CHATTERJEE (DAS), J.)
SN.
AR[CR]