TMI Blog2015 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... – Section 153 provides that notice issued under Act should be served in manner as provided under said Section – It does not even remotely suggest that such person should be served with such notice to hold service of notice as complete – Dispatching of notice by registered post would constitute valid service – Thus, date of sending or dispatching notice by registered post is date of giving notice as contemplated under Section 110(2) – Once authority concerned makes out case for confiscation within time-limit, it cannot sit idle – It has to make concerned person aware of such case by giving written notice – Therefore, date of service of notice cannot be held as one which entitles petitioner to seek for return of goods on ground that six months period had expired – Decided against assesse. - Writ Petition No. 35408/2014 (T-TAR) - - - Dated:- 22-4-2015 - Aravind Kumar, J. For the Petitioner : Sri Nagendra Murthy M For Sri V R Balasumbramani, Adv. For the Respondent : Sri Jeevan J. Neeralgi, Adv. JUDGMENT Heard Sri. Nagendra Murthy. M, learned counsel appearing on behalf of Sri. V. R. Balasubramani for petitioner and Sri. Jeevan Neeralagi, learned panel counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bata shoes, which is said to have handed over to them by petitioner and had been requested to wear the same and on examination of said shoes it was found that it contained a cavity at the sole area concealing four wrapped black coloured plastic papers and on being cut open, it was found that three gold biscuits weighing 116.6 grams each was concealed and one cut piece weighing 63.76 grams with foreign markings upon them. Likewise, on opening of other shoes also gold biscuits were found not only from Sri.Haneefa but also from Sri.Abdul Khader. Accordingly, mahazar came to be drawn and statement of petitioner and other two persons came to be recorded under Section 108 of the Customs Act, 1962. 5. Notice under Section 110(2) of the Act came to be issued on 13.03.2014 to petitioner herein as to why said gold biscuits with foreign markings seized under the mahazar dated 16.09.2013, which was smuggled into India as indicated in the mahazar should not be confiscated under Section 111(d), 111(l), 111(m) of the Act. Apart from confiscation of material used for packing and concealment in terms of Section 118(a) and 119 of the Act and apart from levying penalty on petitioner and two others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 654 (Gauhati) 4. Shyamilata Sharma Vs. Collector of Customs reported in 1992 (57) E.L.T. 415 (Tribunal) 5. Arvinder Singh Vs. Collector of Central Excise, Allahabad and another reported in 1988 (33) E.L.T. 642 (All.) 6. Kantilal Somehand Shah and another Vs. Collector of Customs C. Ex., West Bengal and another reported in 1982 (10) E.L.T. 902 (Cal.) 7. Singh Enterprises Vs. Commissioner of C.Ex., Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.). 8. Per contra, Sri.Jeevan J. Neeralgi, learned counsel appearing for the respondent would support the impugned show cause notice and contends that the same is in consonance with Section 110(2) of the Act and the said provision has to be read in consonance or conjointly with Sections 124(a) 123 of the Customs Act and when so read, it would clearly indicate that issuance of show cause notice is within the period of six months as prescribed under Section 110(2) of Act which mandates issuance of such notice before expiry of the period of six months and the authorities, if for any reason, are unable to issue such notice within six months and intend to extend the period of seizure beyond six months, such authority woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer in such manner s the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1B) Where any goods, being goods specified under sub-section (1A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceeding under this Act and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner provided in clause (a), by affixing it on the notice board of the customs house. 11. A bare perusal of Section 110(2) of the Act would indicate giving of notice as contemplated under Section 124(a) of the Act within six months from the date of seizure of goods is a condition precedent to retain the seized goods by the department and in the absence of such notice being issued to the owner or the person from whose possession goods was seized are to be returned. 12. Section 110(1) of the Act has been incorporated in the present Customs Act which was conspicuously absent under the Old Customs Act, 1878. If upon reasonable belief that certain goods are liable for confiscation, an officer of the custom is empowered to seize such goods from such person. The power of seizure is available to the proper officer if he has reason to believe. If the goods so seized are perishable or its value would deplete due to passage of time or there being constraints for its storage, the Central Government is empowered to issue notification specifying the goods or class of goods for disposing of such goods as per Section 110(1A) and proper officer after following the procedure prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person who is liable to pay penalty is to be given notice in writing informing the ground on which it is proceeding to confiscate the goods and/or impose the penalty on the owner of the goods or person from whom goods were seized by extending an opportunity to submit a representation in writing, within such reasonable time as may be specified in the notice itself. However, the owner or such person is also to be extended a reasonable opportunity of being heard in the matter. A perusal of these three conditions prescribed under Section 124 of the Act does not even remotely suggest that there is any restriction or limitation or even a fetter as regards the time within which proceedings may be initiated by issue of a show cause notice. 13. In other words the only consequence which follows on failure to give notice under clause (a) of Section 124 of the Act within six months of the seizure of the goods would only result in return of the goods from whose possession they were seized as is clear from Section 110(2). Thus, it will have to be seen from facts of each case as to whether notice as prescribed under sub-section (2) of Section 110 was issued to the person from whose possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case referred to supra is more persuasive than the judgment rendered by the Delhi High Court and as such contention raised by learned counsel for petitioner to consider the case of Purshottam Jajodia rendered by Delhi High Court cannot be accepted. 16. Show Cause Notice dated 13.3.2014 - Annexure-A issued to the petitioner in the instant case and its confirmation dated 5.6.2014- Annexure-F issued by third respondent would clearly indicate that Show Cause Notice-Annexure-A came to be issued within a period of six months from the date of seizure of goods as contemplated under Section 110(2) of the Customs Act. 17. Section 110(2) indicates where goods are seized under section 110(1) and no notice in respect thereof is given under Section 124(a) within six (6) months of the seizure, such goods are to be returned under Section 124(a) of the Act. No confiscation of goods imposition of penalty can be passed or levied without issuance of notice in writing unless waived by person concerned. In the instant case goods came to be confiscated by the proper officer on 16.09.2013. Show cause notice came to be issued on 13.03.2014 i.e., before expiry of six months period prescribed i.e., be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les the authorities to effect service of order, decision and notice to be issued under the Act by tendering it through registered post or by affixture where it is not possible or feasible to be served in the manner provided in clause (a) of Section 153 i.e., by affixing it on the notice board of the customs house. 20. Thus, a conspectus reading of Section 153 of the Act would clearly indicate that it does not contain the word given as found in Section 110(2) or 124 of the Act. It is well settled proposition of law that true meaning of the words and expressions used by the legislature must be given effect to and courts must have regard to the aim, object and scope of the object to be achieved while interpreting the words used in a statute. 21. The select committee while recommending repeal of Sea Customs Act, 1878 and for introducing the Customs Act, 1962 in their report have observed to the following effect: The committee are of the view that if any goods are seized proceedings in the nature of Show Cause Notice should be started within six months of the seizure but this period may be on sufficient cause being shown to be extended by the Collector for Customs for a furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the authority concerned intends to confiscate the goods so seized such authorities cannot sit idle and it has to make the concerned person aware of its intention of confiscating the goods so seized by issuance of notice within six (6) months or return the goods. 24. Thus, question would be how to issue or give such notice and what are the ingredients required to be adhered to by the authorities to ensure such notice is valid. In order to examine said issue Section 153 of the Act will also have to be looked into and it is the only provision under the customs Act which provides the mode and the manner under which effecting service of notice is provided. A reading of Section 110(2) of the Act would clearly indicate that the legislature while providing issuance of notice under Section 110 (2) of the Act within the time specified thereunder did not provide mode or manner as to how such notice should be given, but at the same time it provided that a notice required to be issued under Section 110(2) should be a notice as provided under Section 124(a) of the Act . Any notice issued under the Act would obviously include a notice issued under Section 124(a) of the Act and it should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be given, but as 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. 32. It is also our duty to harmonise the provisions of the Act to find out the real legislative intent. It we fail in doing so and do not harmonise these three sections then we have to read in Section 153 any notice , except notice contemplated under Section 110(2), issued under the Act shall be served in the manner provided for in Section 153, which unfortunately, we cannot do as that will mean supplying of words in Section 153 even though there is no ambiguity in the section itself. 33. If that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of six (6) months prescribed under sub-section (2) of Section 110 of the Act was to expire i.e., on or before 15.3.2014 and said Show Cause Notice dated 13.3.2014 Annexure-A came to be dispatched on the same day as is evident from the postal covers Annexures-B and C. However, it came to be delivered on the petitioner on 17.3.2014 i.e., after the expiry of two days of the period of six months prescribed under sub-section (2) of Section 110 of the Act. In that view of the matter, the date of service of notice cannot be held as one which entitles the petitioner to seek for return of the goods on the ground that six months period prescribed under Section 110(2) of the Act had expired. At the cost of repetition it requires to be noticed that words used in Section 110(2) is and no notice in respect thereof is given it has to be construed to mean date of dispatch of notice inasmuch as, a conjoint reading of Section 110(2), Section 124(a) and Section 153 of the Act would clearly indicate that any notice which is required to be issued under the Act can be served by such authority either by tendering such notice to the addressee/noticee in person or by sending/ dispatching it by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
