Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

K. Abdulla Kunhi Abdul Rahaman, S/o Abdul Rahaman Versus Additional Commissioner of Customs, The Joint Director Directorate of Revenue Intelligence, The Deputy Director Directorate of Revenue Intelligence

2015 (9) TMI 146 - KARNATAKA HIGH COURT

Confiscation of Goods – Service of notice – Lapse of period – Petitioner seeking quashing of communication/letter, Annexure- F, issued by third respondent, contending that non issuance of notice under Section 124 of Customs Act, 1962 within period prescribed under Section 110(2) has given right to petitioner to seek for return of seized goods – Held that:- Section 110(2) indicate giving of notice within six months from date of seizure of goods is condition precedent to retain seized goods by dep .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f Sri. V. R. Balasubramani for petitioner and Sri. Jeevan Neeralagi, learned panel counsel appearing for respondents. 2. Petitioner is praying for quashing of communication/letter dated 05.06.2014, Annexure- F, issued by third respondent, contending interalia that non issuance of notice under Section 124 of Customs Act, 1962 (for short the 'Act') within the period prescribed under Section 110(2) of the Act has given right to the petitioner to seek for return of seized goods and as such, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pady, Kallakkatta Post, Kasargode District would be arriving at Bengaluru by Air India Flight No.A1 994 on 16.09.2013 and would attempt to smuggle gold without payment of applicable customs duty, had intercepted said passenger namely petitioner herein while he was attempting to exit himself through Green Channel of customs area and on verification of travel documents by the DRI Authorities it was found that petitioner was a holder of Indian Passport on whom they had specific intelligence input a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l Khader, who had accompanied him in the same flight and were given pair of shoes during the flight and were asked to wear said shoes which sole was said to be concealed with a smuggled gold biscuits. 4. The DRI Officers with the assistance of petitioner intercepted above said two domestic passengers also at the exit of customs Green Channel area and after verification and enquiry and body search being conducted, as agreed to by them, they handed over a pair of black coloured bata shoes, which i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t 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 A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which was beyond the period of six months stipulated under Section 110(2) of the Act. It is contended that on several representations made to the Authorities by petitioner to return the seized goods on the ground that show cause notice was not issued within six (6) months from date of confiscation, a reply is said to have been furnished by third respondent vide Annexure-F intimating the petitioner that Show Cause Notice issued on 13.03.2014 is within the period of six months as per Section 110(2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

seal found in Annexures-B and C and as such, prescribed period of six months namely period stipulated under Sub-section (2) of Section 110 of the Act being violated petitioner would be entitled to seek for return of seized goods and as such it is contended that petitioner is entitled for relief sought for in the writ petition. 7. He would elaborate his submission by contending that authority who issued the show cause notice has not put the petitioner on notice to show sufficient cause for extens .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Biplab Rakshit Vs. Collector of Customs reported in 1996 (88) E.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 20 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 would be entitled to extend the period by a further period of six months and in the event of show cause notice not being issued for confiscating the seized goods either within the period prescribed under Section 110(2) of the Act or within the exte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t an automatic right to seek for return of the goods if such show cause notice is issued in accordance with subsection (2) of Section 110 of the Act. Hence, he prays for dismissal of the writ petition. 9. Having heard the learned Advocates appearing for the parties and on perusal of the records, this Court is of the considered view that question which arises for consideration in this Writ Petition is with regard to validity of show cause notice dated 13.03.2014 issued to petitioner under Section .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot practicable to seize any such goods, the proper officer may serve on the owner of the goods can order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Offi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

escription, 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, i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id period of six months may, on sufficient cause being shown, be extended by the Commissioner of customs for a period not exceeding six months. 123. Burden of proof in certain cases.- (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 of notice cannot be served 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 seiz .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 prescribed under Section 110(1B) would b empowered to take steps to dispose of the goods seized. However, if the proper officer has r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under Section 110(2). The consequence of non-initiation of proceedings within the time set out in the Section would result in return of the goods from whom they were seized. It would indicate that failure to show cause under clause (a) of Section 124 of the Act within the prescribed time of six (6) months will only result in obligation on the part of the proper officer to return the goods to the person from whose possession they were seized. There is nothing in Section 110 of the Act which woul .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

limitation or even a fetter is imposed as regards the time when proceeding may be initiated by issue of a Show Cause Notice. A plain reading of Section 124 of the Act would indicate that competent officer would be empowered to pass an order of confiscation of goods or imposition of penalty on any person after issuing a notice in writing informing the grounds on which it is proposed to confiscate the goods or impose a penalty. Section 124 of the Act only prescribes the conditions, which will have .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ized 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 sh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ther such notice is within the time limit prescribed under sub-section (2) of Section 124 and if not whether owner or person from whose possession the goods were seized is entitled for return of goods. 14. It would be apt at this juncture itself to refer to the decisions relied upon by the learned counsel appearing for the petitioner namely in the case of Purushottam Jajodia Vs. Dir. Of Revenue Intelligence, New Delhi reported in 2014 (307) ELT 837 (Delhi) whereunder the interpretation of the wo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Hon'ble Apex Court in Civil Appeal No.3122/15. 15. A perusal of the said judgment would indicate that judgment rendered by the Hon'ble High Court of Madhya Pradesh in the matter of Commissioner Vs. Ram Kumar Aggarwal reported in 2012 (280) ELT 13 (M.P.) has been distinguished. The High Court of Madhya Pradesh in Ram Kumar Aggarwal's case while interpreting Sections 110(2) and 124 of the Act has held issuance of Show Cause Notice by registered post before the expiry of six (6) mont .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l) No.28186/2011 by judgment dated 21.10.2011. Thus, judgment rendered by the Madhya Pradesh High Court in Ram Kumar's case has reached finality and in the judgment rendered by the Delhi High Court appeal is yet to be disposed of by the Hon'ble Apex Court. Hence, this Court is of the considered view that judgment rendered by the High Court of Madhya Pradesh in Ramkumar's case referred to supra is more persuasive than the judgment rendered by the Delhi High Court and as such contentio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. 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 is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that postal article containing show cause notice-Annexure-A was actually delivered to him only on 17.03.2014 and six (6) months time limit prescribed under Section 110(2) of the Act had lapsed by the time show cause notice was delivered and therefore he would be entitled to return of seized goods. 18. Section 153 of the Act provides that notice issued under the Act should be served in the manner as provided under said Section. It does not even remotely suggest that such person should be served .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the notice as contemplated under Section 110(2) of the Act. 19. Though Delhi High Court was persuaded by the dicta laid down by the Apex Court in the case of Jayanthi for construing the plain and simple meaning of the word "given" to extend the said meaning to sub-section (2) of Section 110, the High Court of Madhya Pradesh has taken note of the fact that Hon'ble Apex Court was not construing the word "given" as used in Customs Act, 1962 and found that Hon'ble Apex C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nables 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 further period of six months. If Show Cause Notice is not issued within a specified period, the goods should be returned to the person from whom they were seized. The Committee also feels that in order to …in himself or inconvenience to a person from whom the documents are seized, he sho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ct was not to harass the citizen from whom goods have been seized and keep the kettle boiling, but to ensure that proceedings are commenced or started within six (6) months from date of such confiscation. 23. Section 79 of the Gold Control Act which is similar to Section 110 of the Customs Act would indicate that the purpose of issue of notice is two fold namely: (i) to intimate concerned person the grounds on which confiscation is proposed; and (ii) to give opportunity to the concerned person f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o make out a prima facie case for confiscation of the goods already seized. In other words, if the authority fails to make up its mind to confiscate the goods within six months from the date of its seizure, such goods are required be returned to the person from whose custody they were seized. Thus, the object of Section 110(2) can be discerned from the very provision itself viz., in the event of the authorities intend to confiscate seized goods they are required to issue notices as provided unde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uired 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

153 of the Act. If the intention of the legislature was otherwise namely to provide for effectuating service of notice in a different manner, it would have said so in Section 153 itself. In the absence of any other provision indicating the mode and the manner of service of notice the only provision which will have to be referred to would be Section 153 of the Act. It is in this background the words used in Section 153 namely "Any order or decision passed or any summons or notice issued und .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssfully refer to the Division Bench decision of the High Court of Calcutta in the case of Union of India v. Kanti Tarafdar [(1997 (91) E.L.T. 51 (Cal.)]. While dealing with Section 110(2), 124 and 153 of Customs Act, 1962, it has been observed: 28. Therefore, the real object of the notice under Section 110(2), which is required to be issued in writing as provided in Section 124 and which is required to be given within six months, is to give the authority concerned a time-limit of six months to m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act should be served in the manner provided in the section. 31. The legislature, while providing that a notice tinder 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 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ides the mode of giving of such notice, which is a special provision. Applying the maxim "Generalia specialiabus non-derogent", which means special provision will prevail upon general provision, we are of the view that special procedure for service of notice as provided for in the Act should prevail over the general enactment of giving of notice. 35. We, therefore, conclude that Section 153 of the Act controls Section 110(2) of the Act and a notice which is required to be given under S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ered post in case both are possible. 38. Thus, the logical conclusion would be that service of a notice will be complete either by tendering or by sending the same by registered post, since the legislature has equated both the situations by using the word "or". 39. In the event of the notice is tendered, the date on which the same was tendered should be taken as the date of giving of notice, but if the other option is exercised and the notice is sent by registered post the date of send .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version