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S.K. Trading Versus Union of India And Others

2015 (10) TMI 1100 - DELHI HIGH COURT

Period for issuance of SCN for confiscation of goods under Section 110 (2) of the Customs Act, 1962 - Power of Commissioner if not exercised within the stipulated period of six months, the seized goods are liable to be released – Contended by Petitioner that goods are liable to be released as the period of extension lapsed. - Respondent submits that date of confiscation not to be included to compute the period of six months - Order impugned was passed prior to the period and same would exten .....

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ner can exercise powers under Section 110(2) and can extend initial period of six months by a further period of six months – Found no merit in the Petition – Decided in favour of the Revenue. - WP (C) No. 9508/2015, CM No. 22311/2015 - Dated:- 13-10-2015 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioner : Mr Manish Kaushik For the Respondent : Mr Akshay Makhija, Ms Mahima Bahl, Mr Siddharth Thakur, Ms Sayngeeta Moktan, Ms Sonia Sharma and Ms Neha JUDGMENT Sanjeev Sachdeva, J WP .....

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section 110(2) and in case the said power is not exercised within the stipulated period of six months, the seized goods are liable to be released. It is contended that the goods were seized on 03.03.2015 and the stipulated period would expire on 02.09.2015. By the impugned order dated 02.09.2015, the period of six months has been extended from 04.09.2015. It is submitted that since the period expired on 02.09.2015 and the extension is from 04.09.2015, the period has lapsed and the goods are liab .....

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he period would have commenced on 04.03.2015 and would have ended with the end of 03.09.2015 and the order of the Commissioner passed on 02.09.2015, thus rightly grants an extension of six months commencing from 04.09.2015. Alternatively, it is contended that since the order impugned in the petition was passed on 02.09.2015, i.e., even prior to the period as per the calculation of the petitioner, the said period under proviso to Section 110 (2) would extend for a further period of six months fro .....

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"110(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." 5. Section 110(2) stipulates that where goods are seized und .....

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etitioner, the said period of six months would have expired on 02.09.2015. Show-cause notice dated 31.08.2015 was issued to the petitioner to show-cause as to why extension should not be granted for issuance of notice under section 124(a) of the Act. On 02.09.2015, a representative of the petitioner appeared before the Commissioner of Customs and stated that the petitioner had no role and according to it, no offence had been committed and prayed for speedy investigation. On 02.09.2015, by the or .....

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as under: "14. We have said that notice must go to the person, from whose possession the goods have been seized, before the expiry of the original period of six months. It is possible that while notice is issued before the expiry of that period, service of such notice may not be effected on the person concerned in sufficient time to enable the Collector to make the order of extension before that period expires. Service of the notice may be postponed or delayed or rendered ineffective by re .....

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on should be cancelled or not. Having regard to the seriousness and the magnitude of injury to the public interest in the case of the illicit importation of goods, and having regard to considerations of the damage to economic policy underlying the formulation of import and export planning, it seems necessary to reconcile the need to afford an opportunity to the person affected with the larger considerations of public interest." 8. The judgment in the case of I. J. Rao, Asstt. Collector of C .....

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templated had been issued within the initial period of six months and even the order under proviso to Section 110(2) has been passed within the initial period of six months. 9. Now coming to the submission of the counsel for the Petitioner about the commencement of the extended period from 04.09.2015 as mentioned in the impugned order, we are of the view that the mere mentioning 'for a period of six months from 04.09.2015. would not invalidate the extension. The order records that the period .....

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ence from the expiry of the initial period. The extended period starts automatically with the expiry of the initial period unlike in a case of renewal, which may be from an entirely different date. 11. In this back drop, even if the contention were to be accepted that the period ended on 02.09.2015, the same would end with the end of 02.09.2015 i.e. on the midnight of 02.09.2015 and the extension of six months would have commenced with the beginning of 03.09.2015, i.e., 00 hours on 03.09.2015. T .....

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tri Ltd. v. Rom Industries Ltd.: (2014) 11 SCC 769, the Supreme Court held as under: "35. In this connection we may also usefully refer to the judgment of the Division Bench of the Bombay High Court in Vasantlal Ranchhoddas Patel v. Union of India [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] which is approved by this Court in Gopaldas Udhavdas Ahuja v. Union of India [(2004) 7 SCC 33 : 2004 SCC (Cri) 1830], though in different context. In that case the premises of the a .....

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ods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Police, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Under Section 110(1) of the Customs Act, 1962 a proper officer, who has reason to believe that any goods are liable to confiscation may seize such goods. Under .....

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rs had seized the goods within the meaning of Section 110 of the Customs Act, 1962 on 4-9-1964. The notice contemplated under Section 124(a) was given after 3-3-1965, that is, after the period of six months had expired. As per Section 110(2), notice contemplated under Section 124(a) of the Customs Act, 1962 had to be given within six months of the seizure of the goods, and, therefore, notice issued after the expiry of six months was bad in law and, hence, the Collector of Customs was not compete .....

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. This submission was rejected and Section 9 of the General Clauses Act, 1897 was held applicable. 36. Speaking for the Bench Chainani, C.J. observed as under: (Vasantlal Ranchhoddas Patel case [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138], AIR pp. 141-42, para 10) "10. … The principle underlying Section 9 has been applied even in the cases of judicial orders passed by courts, even though in terms the section is not applicable. See Ramchandra Govind Unavne v. Laxm .....

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p; El 635 : 113 ER 955]. In that case Section 1 of the relevant statute enacted that warrants of attorney shall be filed 'within twenty-one days after the execution'. Section 2 enacted that unless they were 'filed as aforesaid within the said space of twenty-one days from the execution., they and the judgment thereon shall be void subject to the conditions specified in the section. The warrant of attorney was executed on 9-12-1839 and it was filed, and judgment entered up on the 30th .....

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', it has been observed that 'of' is sometimes the equivalent of 'after' e.g. in the expression 'within 21 days of the execution'. The principle underlying Section 9 of the General Clauses Act cannot therefore, be held to be inapplicable, merely because the word used in sub-section (2) of Section 110 is 'of' and not 'from'." 37. The relevant extracts from Halsbury's Laws of England [ 3rd Edn., Vol. 37, pp. 95-96] were quoted. They read as unde .....

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statute; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation'." 38. In the circumstances, it was held in Vasantlal Ranchhoddas Patel case [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] that the day on which the goods were seized has to be excluded in computing the period of limitation contemplated under sub-section ( .....

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