[Order]. - The first appellant Shri T. Muthukumar filed Shipping Bill No. 3263410, dated 20-1-2009 for export of wooden doors, frames, beams, pillars, brass items etc. through Chennai Customs House. On examination of the goods by the Customs Officers, it appeared to them that some of the goods may be antiques and they referred the matter to the Dy. Superintending Archaeologist, ASI, Chennai Circle, Chennai. The Dy. Superintending Archaeologist examined the goods and opined that eight pieces of “Stone Base” in the consignment appeared to be antiques. Based on his opinion, a show cause notice was issued to the first appellant asking him to show cause why the goods should not be confiscated under Section 113(d) of the Customs Act and penalty imposed on him.
2. The second appellant Shri P. Thangaraj, the proprietor of M/s. Raj Wooden Furniture, is the person who admitted that he only sold the eight pieces of Stone Base to the first appellant. Therefore, a penalty was proposed on him also.
3. On adjudication, the goods valued at Rs. 4,370/- were absolutely confiscated and a penalty of Rs. 10,000/- each was imposed on the first appellant and the second appellant. Aggrieved by the order, the appellants filed appeals before the Commissioner (Appeals). The Commissioner (Appeals) did not give any relief. Aggrieved by the order of the Commissioner (Appeals) the appellants have filed these appeals.
4. The second appellant stated that the said goods were collected from demolished buildings and was only 30 to 40 years old only and cannot be considered as antiques. The Counsel for the appellants submits that the opinion given by the Dy. Superintending Archaeologist that the impugned goods were suspected to be antiques. There is no confirmation from the said officer. On the basis of such suspicion, it is wrong to confiscate goods. He further contested that as per the Antiquities and Art Treasures Act, 1972, Section 24, the competent authority to decide whether an item is antiquity is an officer not below the rank of Director of Archaeological Survey of India, authorized by the Director General of Archaeological Survey of India. Dy. Superintending Archaeologist is lower in rank than that of Director and he is not been authorised to issue certificate under Section 24 of the Antiquities and Art Treasures Act, 1972. Therefore, confiscation on the basis of an opinion given by the Dy. Superintending Archaeologist is without any legal basis. Therefore, he submits that the confiscation should be set aside and they may be allowed to clear the goods without payment of redemption fine and penalty.
4. Opposing the prayer, the ld. AR for the Revenue submits that when the Dy. Superintending Archaeologist in Chennai suspected the goods to be antique, the onus of obtaining certificate from competent authority was on the appellants and the appellants have not obtained any certificate showing that the items were not antiques. He relied on the decision of the Delhi High Court in the case of V.J.A. Flynn v. Union of India - (Del.), where the High Court dismissed a writ petition filed by an exporter against SCN issued in such a case.
5. Considered the arguments on both sides. I find merit in the argument of the appellants that without a clear finding that the goods are antiques goods cannot be confiscated under the provisions of Section 113(d) of the Customs Act read with provisions in Antiquities and Art Treasures Act, 1972. It is also necessary that such certificate is issued by the competent authority. In this case, both the requirements are not complied with. Therefore, confiscation is not sustainable in law. However, since there is a suspicion about the goods being antiques, it is only proper that these goods are not allowed to be exported but allowed to be taken back to town by the first appellant without payment of redemption fine and penalty. Therefore, after setting aside the impugned order the appeals are allowed as per the above terms with consequential relief.
(Order dictated and pronounced in the open Court)
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