TMI Blog2014 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by way of issuance of show cause notice u/s 124(a) within six months or extended period stipulated u/s 110(2) the person from whose possession the goods were seized becomes entitled to their return - The remedy of provisional release is independent of remedy of claiming unconditional release in the absence of issuance of any valid show cause notice during the period of limitation or extended limitation prescribed u/s 110(2) – The counsel for the petitioner had not pressed for release of Rs. 2 crores as noticed thus, while partially accepting the prayer of the petitioner for release of the goods belonging to the petitioner unconditionally, it is directed that the amount of Rs. 2 crores shall be adjusted against liability that might be determined while adjudicating the matter - Decided in partly in favour of assessee. - CWP No. 6030 of 2012 - - - Dated:- 30-11-2012 - Ajay Kumar Mittal and Gurmeet Singh Sandhawalia, JJ. Shri Anand Chhibbar, Sr. Advocate with Jagmohan Bansal and Deepak Gupta, Advocates, for the Petitioner. Shri Satish Aggarwala with Sunish Bindlish, Advocates, for the Respondent. ORDER The petitioner in this petition filed under Article 226/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not agree with the submissions of the petitioner and vide order dated 30-12-2011 ordered to provisionally release the goods subject to certain terms and conditions. The conditions imposed by respondent No. 3 were so harsh that the petitioner could not comply with the same. Thereafter, the petitioner filed CWP No. 260 of 2012 before the Hon ble Delhi High Court. As the goods were imported through ICD, Ballabgarh and seized at Ballabgarh, the petitioner prayed for withdrawal of the writ petition with liberty to approach the appropriate Court. Vide order dated 27-3-2012, the Hon ble Delhi High Court permitted the petitioner to withdraw the petition. Hence the present petition before this Court. 3. Learned Counsel for the petitioner raised following three-fold submissions :- (i) De-sealing of two godowns at New Delhi and Ludhiana is required to be made; (ii) Two consignments detained at ICD Ballabhgarh were illegally seized. A prayer for release was made. (iii) Prayer for refund of the amount of Rs. 2 crores deposited by the petitioner was claimed on the strength of judgment of this Court in Century Metal Recycling Private Limited v. Union of India, 2009 (234) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the amount is to be released then condition with regard to furnishing of bank guarantee or any other appropriate condition may be imposed so that the interest of the respondents may be safeguarded. 7. Replying to the submissions of learned Counsel for the respondents, learned Counsel for the petitioner reiterating his earlier submissions, though initially submitted that the petitioner was entitled to release of Rs. 2 crores but later on argued that the Court may direct adjustment of the said amount in the assessment which might be finalized by the customs authorities while adjudicating the issue. However, direction be issued to the respondents to finalise the proceedings expeditiously. 8. We have heard learned Counsel for the parties. 9. The controversy in the present petition primarily rests upon interpretation of Sections 110(2) and 124 of the Act. It would be expedient to take note of Sections 110(2) and 124 of the Act, which read thus :- 110. Seizure of goods, documents and things. - (1) xx xx xx xx xx xx xx (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose possession they were seized. Section 110(2), does not prescribe a period of limitation within which a show cause notice is to be issued. But if no action by way of issue of a show cause notice is initiated under Section 124(a) within the period of six months, stipulated by Section 110(2) the effect would be that the person from whom the goods were seized would become entitled to their return. 4. The view that commended itself to the Division Bench of the High Court is supported by the following observation of this Court in Assistant Collector of Customs v. Charan Das Malhotra - 1983 (13) E.L.T. 1477 (S.C.) :- Section 124 provides that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. The section does not lay down any period within which the notice required by it has to be given. The period laid down in Section 110(2) affects only the seizure of the goods and not the validity of the notice. (Emphasis supplied) 5. The delay beyond six months in the issue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 110A applies for provisional release and an order is passed it can be said that the goods continue to be under seizure as the order under Section 110A is a quasi judicial order. Section 110(2) would not be operative. It is only in the case where no provisional order is passed for release of the seized goods and if no notice is issued under Section 124(a) for confiscation of the goods then only would Section 110(2) apply and the respondent would be bound to release the goods. Any other reading of the section would mean that a person whose goods are seized would seek a provisional release of the goods, get an order of provisional release, allow the authorities to proceed to believe on that basis that such person seeks to release the goods provisionally and on the expiry of the period of six months if notice is not issued under Section 124(a) then contend that the terms for provisional release of the goods are no longer binding as the period of six months has expired and no notice has been served. The period of notice is only when the respondents seek to confiscate the goods. If there be a provisional release order it is not within the jurisdiction of the respondents to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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