TMI Blog1973 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the period by 2 months for the issue of the show cause notice prescribed under Section 124 of the Act and he extended the period by two months from November 26, 1969. On December 19, 1969 Mr. L.N. Kaul issued notice No. VIII/10-272/Cus/69 stating that the goods shown in Annexure A to the show cause notice have been imported into India contrary to the provisions of para 3 of the Import (Control) Act, 1967 read with Section 11 of the Customs Act of 1968 and that the said goods were notified goods vide notification issued under Section 11(B) of the provisions of Chapter IV-A of the Customs Act, 1962 and that the said goods were acquired and possessed in contravention of the provisions of Chapter IV-A of the Customs Act inasmuch as the petitioner could not on demand produce any bill or such other document in support of genuine purchase or import of the said goods. The notice further stated that it appeared that the petitioner was the person who acquired possession of or was concerned in carrying, removing, depositing, harbouring, keeping, concealing or purchasing or in any other manner dealing with the said goods which the petitioner knew or had reason to believe to be liable to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contemplated under Section 110(2) of the Act a right vested in the petitioner entitling him to return of the goods so seized and once the property under seizure vested in the petitioner by virtue of efflux of time the custom authorities were debarred from holding any inquiry and passing the impugned orders; (2) that the extension of time granted by the Collector of Customs and Central Excise by his order dated November 27, 1969 which is at Ex. B was illegal and invalid and the same was passed without notice to the petitioner; (3) that the impunged order Ex. D passed by the Deputy Collector dated February 24, 1971 was invalid as reasonable opportunity of being heard was not given to the petitioner inasmuch as his application for adjournment of the case was wrongly rejected; and (4) that the dismissal of the appeal without considering its merits was opposed to the principles of natural justice. 2. The learned advocate for the petitioner contended that the goods in dispute were seized by the Custom Authorities on May 29, 1969 and the notice as contemplated by Section 124(1)(a) read with Section 110 of the Act was given on December 19, 1969, that is, after a period of 6 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater. 124. 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) in 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 or 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 in Clause (b)) may, at the request of the person concerned be oral. The aforesaid provisions have been interpreted by the Supreme Court in the case of the Assistant Collector of Customs v. Charon Das Malhotra , and the view taken by the Supreme Court is that the person from whom goods are seized is entitled to restoration of goods if no show cause notice as contemplated under Section 124 read with Section 110 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts only the seizure of the goods and not the validity of notice. In the present case after proceeding of seizure the proceedings for confiscation and imposition of penalty were proceeded with and the proceedings ended in the order of confiscation and imposition of penalty vide order Ex. D . As the goods have already been ordered to be confiscated the question of return of goods after the period of six month as mentioned in Section 110 of the Act cannot survive. In Special Civil Application No. 555 of 1971 decided by a Bench consisting of our brother Mr. M.P. Thakker and myself decided on April 10, 1973 Vasa Bhaja v. B. Tawde the question arose about the return of 2 silver bars which were seized by the custom authority on June 10, 1968 from one Vasa Bhoja. The claim for return of 2 silver bars was rejected by the Court on two grounds, namely, (1) that the question that Vasa Bhoja was entitled to return of goods depended upon the disputed question whether 2 silver bars belonged to or owned by Vasa Bhoja, and (2) that an order of confiscation thereof had already been passed. This decision, therefore, supports our conclusion that once the order of confiscation of the goods is passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of goods attempted to be improperly exported. Section 114 provides for penalty for attempt to export goods improperly. Section 115 provides for confiscation of conveyances and Section 116 provides penalty for not accounting the goods. Section 117 is a general provision providing for penalty for contravention which is not expressly provided. Section 118 provides for confiscation of packages and their contents. Section 121 provides that where any smuggled goods sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation. Section 125 provides for option to pay fine in lieu of confiscation. Section 122 contains procedural provisions and Section 129 provides for rules relating to burden of proof. Section 124 requires that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV unless owner of the goods is given notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty and is given an opportunity of making a representation in writing against the grounds of confiscation or imposition of penalty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the statement of the panchas and not the Custom Officer. That being so the first ground regarding the invalidity of the notice advanced on behalf of the petitioner cannot be accepted. It was then contended that the notice under Section 124 of the Act was invalid because it was not issued within the statutory period provided by Section 110 of the Act. In short the contention was that the statutory period laid down in Section 110 applied to the notice required to be issued under the provisions of Section 124 of the Act. In support of this strong reliance was placed on the decision of the Division Bench of this Court consisting of Diwan J. (as he then was) and P.D. Desai J. in Ambalal Morarji Soni v. Union of India and Ors. and particularly on the following passage occurring in the judgment: We may also point out that with the consent of the person concerned both under the Customs Act as well as under 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 Context in which it is us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petitioner challenged these notices on the ground that the notices were not issued within the period of six months. The Court came to the conclusion that the word given used in Section 110 of the Act and Section 79 of the Gold (Control) Act did not mean merely issuance of notice but it required that notice must have been served on the person intended to be served by the provisions of the Act within the period of six months. While giving this construction to the word the Court made the observation which have been cited herein before. The notice under die Custom Act with which the Court was dealing required the person from whom the gold was seized to show cause why a penalty under Section 112(b) of the Custom Act should not be imposed and the goods in dispute should not be confiscated under the provisions of the Custom Act. This notice was obviously under Section 124 of the Act. Bearing this in mind we have to consider the observations made by the Court and cited hereinbefore. We have divided the material observations in 2 parts, namely, A and B. These two observations do not fit in with each other. In the observation at mark B it has been held that the notices were not bad a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Section 124 of the Act. The petitioner, therefore, made a request to the Collector demanding the return of the goods. The Custom authorities thereafter gave an intimation of the extension of the period for the issue of show cause notice by 6 months. This intimation notice was at Annexure 4. Subsequently the Custom authorities also issued a notice to the petitioner to show cause why the goods should not be confiscated under the provisions of Section 111 of the Customs Act and this notice was at Annexure 6. The petitioner challenged Annexures 4 and 6. It appears that subsequently a show cause notice, Annexure 9, extending the period to show cause as mentioned in Annexure 4 was issued and it was Annexure 9. The petitioner also challenged the notice at Annexure 9. The Court following the decision of the Supreme Court in Assistant Collector (supra) observed as under: I, therefore, accept the petitioner's contention that the extension of the six monthe' period of giving show cause notice by the Collector of Customs and Central Excise under the proviso to Section 110(2) of the Customs Act was invalid in law with the result that the subsequent show cause notice given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal hearing which is matter of right to the petitioner was denied to him. Now there is no dispute that prior to February 22, 1971, 3 adjournments were granted to the petitioner either at his request or on the request of the petitioner's advocate. With respect to fixing the date of hearing as February 22, 1971, a notice was served on the petitioner on February 2, 1971. It is clear, therefore, the petitioner was given 20 days' time to prepare himself for the personal hearing in the matter. On February 22, 1971, the learned advocate who was appearing on behalf of the petitioner remained present before the Officer and made a statement that he was unable to proceed with the matter since his client had taken away the papers stating that he wanted to study the case. At that very moment an application was received by post praying for time. The petitioner requested for time on the ground that the petitioner wanted to change the advocate. Now in the notice which was issued to the petitioner intimating him the date of hearing as February 22, 1971, a specific warning was given to him that the case would not be adjourned because summonses had been issued to the witnesses who were r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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