TMI Blog2013 (1) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred to by the petitioner, has nothing to do with the show cause notice, as it relates to detention of the goods beyond the period specified. Thus, that provision does not render the show cause notice bad. The second plea taken by the petitioner is therefore unsustainable in law. Materials given at the time of enquiry have not been considered in the show cause notice and the action should have been dropped - Held that:- At the stage of show cause notice, the authority gathers the materials and issues notice for proceeding under the Customs Act. It is at the stage of adjudication the relevant materials will be considered by the competent authority and confiscation or penalty, as the case may be, will be ordered on the merits of the case. There is no substance in pleading that at the stage of enquiry the authority should have dropped the proceeding as against the petitioner. That will amount to prejudging the issue by an authority, who does not have the jurisdiction to do so. Goods in question have not been seized by the Customs Department therefore no penalty on the petitioner as registered owner - Held that:- This fact can be brought to the attention of the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were detained under the goods detention notice dated 20.8.2010. The Commercial Tax Officer attempted to hand over the goods to the Prohibition and Enforcement Wing of the Police Department on 10.6.2011 and since the said authority declined to take custody of the goods on the plea that it is foreign liquor, the Commercial Tax Department intimated the Customs Department and the Customs Department seized the foreign liquor bottles under a mahazar dated 28.6.2011 in the presence of two witnesses, for taking action under the Customs Act, 1962 and to verify the licit origin and legal importation of the goods seized under the mahazar. 2.3. Thereafter, summons were issued under Section 108 of the Customs Act to the persons concerned, including the driver of the vehicle, owner as recorded in the registration certification of the vehicle, the petitioner herein and other persons, relating to sale of vehicle as informed by the petitioner. Their statements were recorded. Thereafter the Customs Department issued a show cause notice on 23.12.2011. The relevant portion of the said notice reads as follows: "26. In view of the above, Smt. T. Smitha and Shri Udaya Kumar Singh are hereby call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first respondent is represented by Mr. E. Vijay Anand. The second respondent has been served, but none appears. The third respondent is represented by Mr. A.R. Jaya Prathap, learned Government Advocate (Tax). A counter affidavit has been filed by the first respondent. No counter affidavit has been filed by the third respondent, however the learned counsel submits on the basis of records and documents. 4. Mr. K. Vasudevan, learned counsel for the petitioner contended as follows: i. that the Customs Department has no jurisdiction to issue show cause notice and initiate action against the petitioner; ii. that assuming, without admitting, they have jurisdiction to issue the notice, the notice is bad on account of delay and laches; iii. that in the preliminary enquiry made by the Customs Department, the petitioner has submitted all relevant records and gave her explanation that she sold the vehicle on 14.9.2009 and delivery note was issued on 15.9.2009 and therefore, she was not the owner of the vehicle on the date of seizure, to wit 20.8.2010, and hence notice should not have been issued to her and the non-consideration of the explanation given by her is fatal to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued only with regard to the penalty on the premise that the vehicle that was seized, while carrying foreign liquor, continued to be in the name of the petitioner on the date of seizure. If that be so, the petitioner has to first satisfy the department in the show cause notice proceedings that she is nowhere concerned with the goods nor the vehicle in question. 8. The plea taken in ground (A) that the Customs Department has not discharged its burden in proving the illicit importation of the goods, does not arise in this case, as the burden is on the person who claims to be the owner of the goods so seized. Therefore, the plea that Section 123 of the Customs Act is not attracted and goods are not liable for confiscation cannot be sustained. Point No.1 is answered against petitioner. 9. The second issue is that there is a delay in issuance of show cause notice from the relevant date, to wit 20.8.2010. The goods were seized under the mahazar by the Customs Department on 28.6.2011 and the show cause notice was issued on 23.12.2011, to wit within six months. In any event, Section 110 of the Customs Act, which has been referred to by the petitioner, has nothing to do with the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The above plea is factual in nature and the same can be urged before the adjudicating authority to sustain the case that no penalty is leviable. This Court is not inclined to go into the factual aspects of the case at the stage of show cause notice to hold that the show cause notice is illegal or without jurisdiction. 15. Admittedly, the goods in question are foreign liquor bottles and no document appears to have been produced. The vehicle stands in the name of the petitioner, which however is denied by the petitioner stating that she has sold the vehicle based on a sale receipt and delivery note. These are all factual aspects of the case which have to be considered by the adjudicating authority to come to a conclusion regarding the involvement of the petitioner in the alleged offence. If the petitioner is able to prove prima facie that she is not involved in importation of the goods in question or that she is not the owner of the vehicle at the relevant point of time, the same will be considered by the adjudicating authority. All the plea taken by the petitioner on facts are issues to be decided in adjudication. The legal plea taken can also be raised before the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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