TMI Blog1971 (7) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was issued by the supreintendent (Technical). Central Excise, Headquarters, Baroda, the third respondent herein. By the first show-cause notice, the petitioner was called upon to show cause why a penalty under Section 112(b) of the Customs Act should not be imposed and the goods mentioned in the Schedule annexed to that notice should not be confiscated under the provisions of the Customs Act. By the notice under the Gold (Control) Act, the petitioner was called upon the show cause why penalty should not be imposed and the gold seized from him should not be confiscated as the petitioner had been found to be in possession, custody and control of foreign gold weighing 98 grams and other gold ornaments weighing 4357 grammes of which the petitioner had failed to keep an account in the prescribed form and manner. The petitioner has challenged the two show cause notices and he has contended that since these notices were not given to him within a period of six months from the date of the seizure of the goods, the goods must be returned to him as he was the person from whose possession the gold and gold ornaments were seized; and the petitioner contends that on the expiry of the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter unless the owner of the goods or such person:- (a) 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; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter; Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral. Section 153 of the Customs Act provides:-- 153 . Any order or decision passed or any summons or notice issued under this Act, shall be served- (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board or the customs house. 4. Section 79 of the Gold (Control) Act is in terms identical with the provisions of Section 110 read with Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Supreme Court was as to when a notice of calling a meeting contemplated by the provisions of the Mysore Town Municipalities Act, 1951, can be said to have been given. The main contention before the Supreme Court was that sufficient notice of the special general meeting was not given and it was in this connection that the Supreme Court considered the contention that the sending of the notice amounted to giving the notice. Das Gupta, J., delivering the judgment of the Supreme Court observed:-- Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. Thus as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given the giving is not complete. The main object of giving the notice under Section 27 (3) is to make it possible for the Councillors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned is entitled to have the goods returned to him. In Assistant Collector of Customs v. Charan Das Malhotra, 1971 (1) SCC 697 = (AIR 1972 SC 689) it was held by the Supreme Court:-- The right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Consequently such a vested civil right in the respondent cannot be defeated by an ex parte order or extension of time by the Collector. An opportunity to be heard should be available even in a case where extension is granted before expiry of the initial six months, after which period alone the respondent can claim the right to return of the seized goods. In view of this decision of the Supreme Court it is clear that a civil right to get back the seized goods vests in the person concerned if notice is not given to him within the period of six months from the date of the seizure. It is clear that in the instant case the goods were seized on May 7, 1969, and the period of six months would, therefore, expire on November 6, 1969; and the right vested in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person concerned without necessarily sending it by registered post in each and every case. The consequences of not accepting the notice when tendered by the postal authorities are very serious because then under Section 153 of the Customs Act and Section 113 of the Gold (Control) Act, it would be open to the authorities to serve the notice merely by pasting it on their own notice board and it is not likely that any citizen would refuse to accept the notice tendered by the Postal Authorities when the consequences of non-acceptance would be to have the notice pasted on the notice board and the goods confiscated or the penalty imposed on him ordinarily without his knowing as to what the grounds of confiscation or imposition of penalty are and without his getting an opportunity of showing cause against such grounds. 9. We may also point out that with the consent of the person concerned both under the Customs Act as well as under the Gold (Control) Act, the notice can be oral and unless the grounds are communicated to him in person it cannot be said that the notice has been given to him orally. This is the further ground in support of our conclusion that the word given in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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