TMI Blog2006 (2) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... er ingots said to be illegally transported from Neeleswaram to a foreign country. Enquiry conducted had revealed that husband of the petitioner in O.P.No. 20917 of 1999 by name Moosa and father of the petitioners in O.P.Nos. 21354 and 28882 of 2002 by name Kallatra Abdul Khader Haji were involved in the illegal transportation of silver ingots and were found guilty of offence under Section 111(d) of the Customs Act, 1962. Goods were confiscated and penalty of ₹ 5 lakhs was imposed on Kallatra Abdul Khader Haji and ₹ 3 lakhs on M.B. Moosa. Appeals were filed before the Central Board of Excise and Customs against the original order C. No VIII/10/9/74 Cus. Adj. dated 18.8.1977 passed by the Collector of Customs and Central Excise and the appeals were rejected by the appellate authority. Appeals Nos. 398 to 408 preferred against the above mentioned order before the Central Board of Excise and Customs. New Delhi were also dismissed as per order dated 21.2.1980. Relevant portion of the order reads as follows: As regards Kallatra Abdul Kader Haji, the Board observes that the plea that there has been no unauthorised export is belied by the facts relating to the seizure. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case is concerned, the Department is not proceeding against the legal heirs, but against the assets of the defaulters in the hands of the legal heirs. 4. The Customs Authorities were not made known of the death of Moosa and Kallatra Abdul Haji. Moosa died on 5.1.1992 and Kallatra Haji died on 28.2.1993. Their properties were bequeathed to the legal heirs. Department has got definite information that the properties in Ajanoor Panchayat, Hosdurg Taluk covered in re-survey Nos. 268/1 Pt. 1.00 acre, in R.S. 265/2 Pt. 1.00 Acre, in R.S. No 261/4 0.06 Acre and in R.S. No 300/2 1.33 acres totalling to 3.39 acres belonged to Moosa, the late husband of the petitioner in O.P. No. 20917 of 1999. Customs Authorities also got information that the properties comprised in R.S.No 53/1 and R.S.No 53/2 Pt. having 0.43 acres and 0.22 acres of land respectively belonged to deceased Abdul Kader Haji. 5. Customs Authorities took steps for the recovery of the penalty amount due to the department by attachment and sale of the properties belonged to Jate Moosa and Late Abdul Khader Haji through the Tahsildar, R.R. Kasargode. Petitioners being legal representatives of Moosa as well as Abdul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efaulters or against their property for the last so many years and therefore there is no justification in initiating the proceedings against the properties left behind by the deceased defaulter. 9. Sri John Varghese, Assistant Solicitor General appearing for the department on the other hand contended that the Department had initiated proceedings against the defaulters when they were alive and since they are no more Department has got the legal right to recover the amount from their properties which have been inherited by the legal heirs. Counsel submitted that the Department has not taken any action personally against the legal heirs but only against the properties of the defaulters. Counsel submitted that the Department could invoke the provisions of Section 142(i)(C)(i) of the Customs Act to recover the amount from the properties of the defaulters as if it were arrears of land revenue. 10. The offence committed by the deceased Moosa as well as Kallatra Abdul Khader Haji was an economic offence, that is, smuggling, within the meaning of Section 2 (39) of the Customs Act. Section 111 of the Customs Act deals with confiscation of improperly imported goods etc. Section 112 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act or under the provisions of the Kerala Revenue Recovery Act. In our view, the above contention cannot be sustained in view of the Bench decision of this Court in Devi and Ors. v. State of Kerala 1977 KLT 781. Question arose in that case was whether coercive proceedings for recovery of the amount can have operation against the legal representatives of the deceased person for default occasioned by the deceased. The Bench followed the decision in Janaki v. State of Kerala 1976 KLT 182 wherein the learned Judge held as follows: In law, a legal representative is not a different person from the deceased, but only continues the persona of deceased. In this case the arrears due from the deceased are sought to be recovered from his legal representative who continues the persona of the deceased. There is no flaw or infirmity in the proceedings thus started. We are therefore of the view, when the sum is payable by any person and the same is sought to be recovered from his property as if it were land revenue, the mere fact that defaulter is no more, the proceedings will not abate and the properties inherited by the legal heirs could be proceeded with since recovery proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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