TMI Blog1998 (8) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... me, was working as a local handling agent and signatory of M/s. India Sales International, Rajbi Road, Kanpur, Uttar Pradesh (hereinafter referred to as India Sales) for export of their goods from Calcutta Port and India Sales, at the material time, had been exporting machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hongkong, Jeddah and Dubai. It is claimed that job of the said partner of the petitioner, while working as handling agent and signatory of India Sales, was for handling the export of goods and he was paid lump sum charges per shipment which included release of their cargo from Railway/Transport and handing it over to the clearing agent, preparation of export documents relating to Customs etc. and after shipment is effected sending all the documents to the principal i.e. India Sales. It is noted here that names or any other particular of the partners of the petitioner have not been disclosed either in the writ petition or in the supplementary affidavit filed on behalf of the petitioner. It is also noted that the main writ petition was supported by an affidavit affirmed by one Binod Agarwal who was the Tadbirkar of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re received at Kanpur Station as per order term Ex-Kanpur and then those bags were loaded in wagon. According to the petitioner these bags were cleared from Howrah Railway Station by employees of the petitioner after which the goods were kept in Warehouse in the account of clearing agent M/s. Shaikh and Pandit and their responsibility was for arrangement of further transport, loading and unloading, shipment, clearance, etc. The petitioner stated that the contents of the bags were not checked by the petitioner on arrival of the goods at Howrah. It is difficult to believe that the petitioner did not get the contents of the bags checked on arrival of the goods at Howrah. Ordinarily the purchaser checks up the contents and conditions of the materials when the materials reach the destination. The case of the petitioner is that one of the partners of the petitioner, whose name has not been disclosed, in his individual capacity was working as a local handling agent and signatory of India Sales for Export of their goods from Calcutta Port and that India Sales had been exporting Machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hongkong, Jeddah and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Sales and 200 bags of the petitioner were mixed up in the wagon and that on the arrival of goods at Howrah the bags were not checked by the petitioner is not correct. It is also important to note here that the Paragraphs 5 and 7 of the writ petition have been verified as information derived from the records. No such records has been produced before the Court to substantiate the statements made in Paragraphs 5 and 7 of the writ petition. Under these circumstances it is difficult to believe the case of the petitioner. Moreover these aspects of the matter can be properly decided on evidence by the competent authority under the Customs Act, 1962. Court while exercising powers of judicial review under Article 226 can not assume or usurp the functions of the competent authorities under the Customs Act, 1962. 6. The petitioner stated that the balance four trucks with 590 bags belonging to India Sales and the petitioner reached to the Warehouse and in view of the seizure of 150 bags of goods of India Sales, the Warehouse ought to have received 200 bags of Refuse for Joss Sticks on account of the petitioner and 390 bags of machine finished sandalwood products on account of India Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspicious circumstances and to form a reasonable belief. [Indru Ram Chand Bharvani v. Union of India - 1992 (59) E.L.T. 201 (S.C.) = (1988) 4 SCC 1; State of Gujarat v. Mohan Lal - 1987 (29) E.L.T. 483 (S.C.) = AIR 1987 SC 1321]. In Union of India v. Lexus Exports Pvt. Ltd. reported in 1994 (71) E.L.T. 348 (S.C.) = (1997) 10 SCC 232, it was held by Supreme Court that the proceedings of seizure and confiscation are proceedings in rem. 10. The respondents in their Affidavit-in-Opposition stated that all the concerned goods under different shipping bills fully described in the show cause notice dated 18-8-1994 (Annexure `A of the application for interim order in FMAT No. 3832 of 1995) were detained and seized by the appropriate authority on the reasonable belief that they are liable to confiscation under the Customs Act, 1962, inter alia, on grounds that the exporter who was the active partner of the petitioner had wrongfully attempted to export prohibited goods by untrue and false declaration and concealment. It was further stated in the said Affidavit-in-Opposition that the adjudication order under Section 51 of the Customs Act, 1962 in respect of the Shipping Bill No. EF-787, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake on the part of any person in loading the goods in the godown, in carrying the same to the dock and thereafter in loading the same inside the container at 6, Khidderpore Dock, Calcutta. All the aforesaid acts were carried out in planned way to smuggle 50 bags sandalwood pcs. The container in question was detained on 26-2-1994 on the reasons to believe that the consignment contained contraband. Representative Samples were drawn on 1-3-1994 for Chemical Test of the Refuse (dust material). The concealment of 50 bags of sandalwood pcs. inside the container in which a consignment of 200 bags Refuse for Joss Sticks, as declared in the Shipping Bill EF-787, dated 14-2-1994 A/c. Tirupati Corporation, could be found out only on 3-3-1994 at the time of destuffing of the bags of Refuse (dust materials). It then became evident that 150 bags of Refuse (dust material) were used for concealment and carrying of 50 bags sandalwood pcs. inside the said container. It was then not required, and also not became necessary to wait for having the Test result of the samples so drawn out of the bags of Refuse (dust material). The goods consisting of 150 Refuse (dust material), used for concealment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up of any goods at the time of loading in the said lorry and at the time of their subsequent load loading in the container. It was also discussed, as incorporated in the Show Cause Notice issued by the department, that 150 bags of Refuse for Joss Sticks (dust materials) as declared under Shipping Bill No. EF-787, dated 14-2-1994 were seized under Section 119 of the Customs Act, 1962 as the said goods were used for concealment and carrying, and thereby illegal exportation of 50 bags of sandalwood pcs. in violation of the provisions of the Customs Act, 1962 read with the Export and Import Policy, 1992-97. 13. Under these circumstances it is evident that there were relevant and germane materials and circumstances on the basis of which the proper officer had reason to believe that the goods are liable to confiscation under the Customs Act, 1962, therefore, seized those goods under Section 110 of the Customs Act, 1962. Therefore, the seizures were made in accordance with the provisions contained in Section 110 of the Customs Act, 1962. 14. On behalf of the petitioner it was argued that no notice had been given to the petitioner under Clause (a) of Section 124 of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d items contained sandalwood in any form, but excluding fully finished handicrafts made out of sandalwood and machine finished sandalwood products . Admittedly the goods which were tried to be exported and seized were made of sandal wood. Whether those goods are covered by the exclusionary provision will be decided by the competent authority under Customs Act, 1962. 16. It appears from Annexure `A of the application for interim order in FMAT No. 3832 of 1995 that the Notice dated 18-8-1994 under Section 124 of the Customs Act referred to the following seizures : 1. 200 gunny bags containing sandalwood pcs. from inside the container No. NKAV-201290-1(20 ) at 6 K.P.D. on 3-3-1994. 2. 130 bags dust material and 50 bags sandal wood pcs. from inside the container No. EISU-309625-9(20 ) at 6, K.P.D. on 3-3-1994. 3. 100 bags sandalwood pcs. and 50 bags dust material from the office of the Commissioner of Commercial Taxes, West Bengal at 14, Beliaghata Road, Calcutta-15, on 10-3-1994, collectively valued at Rs. 86.5 lakhs. 4. 190 bags sandalwood pcs. from inside the godown of M/s. Macheill Barry Kilburd, Ex-employees Transport Co-operative Society Ltd. at 26/1, Satya Doctor Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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