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TMI Blog2014 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Section 110(2) of the said Act prescribes that the upper time limit for retaining the seized goods is of six months, in case no notice in respect thereof is given under Clause (a) of Section 124 of the said Act, from the date the seizure of the goods. Moreover, in case no such notice is given, the goods are mandatorily required to be returned to the person from whose possession they were seized. Of course, the period of six months may, on sufficient cause being shown by the Commissioner of Customs, be extended for a further period not exceeding six months. This is stipulated in the proviso to Section 110(2) of the said Act. 2. The facts in each of these writ petitions need to be set out briefly in order to appreciate the context in which the said expression is to be considered. 3. In W.P.(C) 416/2014 (Purushottam Jajodia vs. Directorate of Revenue Intelligence & Anr.) the seizure of goods took place on 29.10.2012. The period of six months prescribed under Section 110(2) would expire on 28.04.2013. However, the Commissioner of Customs invoked the proviso and extended the period by an order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 was received by the petitioner through a Special Messenger sent by the respondent. The letter indicated that earlier a show cause notice dated 08.10.2013 had been sent by speed post but the same could not be delivered as the house was found locked. Consequently, the said notice was being sent again through a Special Messenger. It was, therefore, requested that the petitioner should acknowledge receipt of the notice. As, according to the petitioner the notice was received beyond the period of six months, the petitioner requested for unconditional release of the goods including the currency. The same was not accepted by the respondent and, therefore, the petitioner has approached this Court. 6. From the facts narrated above, it is evident that the question which arises for consideration in each of these three writ petitions is the same. The question is whether mere dispatch of a notice under Section 124(a) of the said Act would imply that the notice was "given" within the meaning of Section 124(a) and Section 110(2) of the said Act? 7. The learned counsel for the petitioners placed reliance on a decision of the Supreme Court in the case of K. Narsimhiah vs. H.C. Singri Gowda: AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of Kanti Tarafdar (supra). 9. Section 110(2) of the said Act reads as under:- "(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 six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months." (underlining added) 10. Section 124 of the said Act reads as under:- "124. Issue of show cause notice before confiscation of goods, etc. - No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in writing with the prior approval of the officer of customs not below the rank of a Deputy Commissioner of Customs, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whole object of giving the notice under Section 124(a) of the said Act is to inform the person concerned of the grounds of the proposed confiscation or proposed imposition of penalty as also to give him an opportunity to make a representation in writing so that an order confiscating or not confiscating the goods may be passed. 14. The Supreme Court in K. Narsimhiah (supra) was considering the meaning of the word "given" as used in the proviso to Section 23(a) of the Mysore Town Municipalities Act, 1951. The relevant proviso was as under:- "Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the whole number of the Councillors and at least fifteen days' notice has been given of the intention to move the resolution." (underlining added) 15. The view expressed by the Supreme Court was as under:- "11. This brings us to the main contention that three days' notice of the special general meeting was not given and so the meeting is invalid. We find it difficult to agree with the High Court that "sending" the notice amounts to "giving" the notice. 12. "Giving" of anything as ordinarily understood in the English langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, this decision of the Supreme Court clearly indicates that looking to the object for which the notice is to be given as provided in that particular piece of legislation, the Court has to consider whether the giving of the notice with the particular object in view is so material as to render the proceedings subsequent to non compliance with such provision invalid or in the present case, whether the notice can be said to have been properly given as contemplated by law. The words in Section 124 are-"the owner of the goods or such person is given a notice in writing so far as the Customs Act is concerned. Similar words are found in the Gold (Control) Act. The whole object of giving notice is to inform the person concerned of the grounds on which it is proposed to confiscate the goods or to impose a penalty and to give him an opportunity to make a representation in writing within such reasonable time as may be specified in the notice and he must be given reasonable opportunity of being heard in the matter." "7. ......Giving of the notice contemplated by Section 124 of the Customs Act and Section 79 of the Gold Control Act means that the notice must have been received because a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act, are controlled by the words "issue of show cause notice" as occurring in Section 124 of the Act and the words "any notice issued under this Act shall be served" as occurring in Section 153 of the Act." "31.The legislature, while providing that a notice under Section 110(2) must be given within the time as specified in the said section did not provide in the section itself as to how such notice should be given, but at the same time provided that a notice under Section 110(2) should be a notice "issued" under Section 124 of the Act and "any notice", issued under the Act, which obviously includes a notice under Section 124 of the Act, should be "served" in the manner provided in Section 153 of the Act. If the legislature intended that the manner and method of giving notice under Section 110(2) should be different, then it would not have provided in the said section the words "notice in respect thereof if given under Clause (a) of Section 124" and the words "issue of show cause notice" in Section 124 of the Act and the words "Any.....notice issued" in Section 153 of the Act." (underlining added) 20. We are afraid that we cannot agree with the observation of the Calcut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered post would amount to service of the notices and, therefore, would amount to giving of the notices under Section 124(a) of the said Act. We do not agree with this submission made on behalf of the learned counsel for the respondents inasmuch as they have ignored the last phrase used in Section 27 of the General Clauses Act, 1897 which is to the following effect - "...to have been effected at the time at which the letter would be delivered in the ordinary course of post." 23. In each of the cases before us, the show cause notices under Section 124(a) of the said Act bears the dates which happens to be either the last date or the penultimate date of the stipulated period under Section 110(2) of the said Act. It cannot be expected that a document sent by registered post would be delivered on the very same day or even the next day in the ordinary course of post. Furthermore, Section 27 of the General Clauses Act is qualified by the words - "unless a different intention appears." That different intention is discernible from the expression "informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty." Unless a person receives the notice how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods, failing which, the goods shall be liable to be returned to the person from whose possession they were seized. The object of this provision is to apprise such person of the grounds on which confiscation of the goods or imposition of penalty is proposed. In view of the object and purpose of this provision, the legislature in its wisdom has used the words "notice is given", which would obviously mean that notice must be issued within six months of the date of seizure. The purpose of this provision is to relieve such person, if the department sleeps over the matter for a period exceeding six months from the date of seizure, without issuing notice of intended confiscation of the goods or imposition of penalty. Its purpose will not be frustrated, if the notice, though is given within six months of the seizure of the goods, is not served on such person within six months. On the contrary, if the same is construed so as to mean service within six months from the date of seizure, such person may avoid the service of notice for a period up to six months and may further take undue advantage by invoking sub-section (2) of Section 110. Needless to say that notice may be given by in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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