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Shri Parminder Singh Sabharwal Versus Commissioner of Customs (Export) , Nhava Sheva

Detention of assets - violation of principles of natural justice and fair play. - Allegation of Smuggling of consignment seized including Luxury Car, Luxury Wrist Watches, Assorted jewellery, pieces of fur of wild animals and cash - whether the impugned order extending the time limit under Section 110(2) is legal and proper and whether the officers of DRI had sufficient time and opportunity for investigating into the details of the assets detained vide Panchanama dated 6.12.2013, and further inv .....

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ugh other officers search for such documents, goods or things. The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word Magistrate, wherever it occurs, the words Commissioner of Customs were substituted. - It is evident from perusal of the panchanama dated 6.12.2013 that no condition pre .....

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ucting inquiry and or issue of show-cause notice under Section 124 within a period of six months from the date of detention of the goods. It is evident on the face of record that the investigation officers have done practically very little or nothing in spite of the appellant being available for the purpose of inquiry right from 7.12.2013 till 10.2.2014 being the period of judicial custody. Further, during the said custody, the DRI have never sought permission to interrogate the appellant. Even .....

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of six months, have ventured to make further inquiry about the detained assets by recording statement and asking for further details like Bank statement and other documents.

Detention of the goods/assets in question is bad under the provisions of Section 110 as the goods/assets have only been detained and not seized as required under the scheme of the Act. We further take notice of this fact that so far the two cars in question is concerned, major part of the purchase price have been .....

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pellant and their family members after obtaining PD Bond and/or Indemnity Bond, that the appellant and other persons will not alienate the assets returned to them and/or any way deal with them without prior permission of the Commissioner of Customs. The goods are to be returned forthwith, within a maximum period of 20 days from receipt of a copy of this order.

As the appellant is a noticee in the show-cause notice dated 13.1.2014 in the case of alleged smuggling of Red Sanders, we per .....

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MBER (JUDICIAL) AND SHRI P.S. PRUTHI, MEMBER (TECHNICAL) For the Petitioner : Shri Rizwan G. Merchant, Advocate For the Respondent : Shri M.S. Reddy, DC (AR) ORDER Per: Anil Choudhary The appellant, Shri Parminder Singh Sabharwal, has preferred this appeal against Order-in-Original No. 02/2014-15 dated 5.6.2014 passed by the Commissioner of Customs (Exp), JNCH, Dist. Raigad, wherein the learned Commissioner has been pleased to extend the time for issue of show-cause notice, to detain the assets .....

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the course of further investigation, the Revenue felt that the appellant is also one of the person involved in the smuggling of the consignment seized in July, 2013 as well as in some previous consignments. Search was conducted in the premises of the appellant on 6.12.2013 and the following assets found were detained and taken custody by the Revenue: - (i) One BMW 525 D Car bearing No. HR-26-BQ-1600; (ii) One Jaguar XJ Car bearing No. CH-23-T-3631; (iii) 20 (Twenty) used Luxury Wrist Watches; (i .....

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umental in shipment of 19 container loads of Red Sanders to Hong Kong with the help of Santosh Pandurang Patil, Ajay Kumar Sharma @ Manish Verma, Kirti Patel and others. Considering the average quantity of Red Sanders in a 40 feet refrigerated container to be 22MTs, the total quantity of Red Sanders shipped out by the appellant works out to approx. 418 MT valued at 167.20 crore. The said quantity of Red Sanders was consigned by him in truck loaded from Delhi to Bhiwandi/Navi Mumbai through Globa .....

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2) of the Foreign Trade (Regulation) Rules rendering himself liable to penalty under Section 114(i) and 114AA of the Customs Act. 2.2 Further, the appellant was required to show cause as to why not penalty under Section 114AA of the Act be not imposed and it was further observed in the aforementioned show-cause notice that financial investigation in respect of the case, including the appellant, are in progress and separate show-cause notice covering these aspects to be issued in the course of ti .....

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in the investigation. The appellant preferred miscellaneous application No. 29/N/2014 to 33/N/2014 before Additional Chief Metropolitan Magistrate, 8th Court, Esplande, Mumbai for return of Passport and for return of articles taken charge under Panchanama dated 6.12.2013. After receiving notice from the Court of Magistrate, Esplanade, the officers of DRI moved Miscellaneous Application before the Honble High Court seeking imposition of an additional condition of surrender of appellant's pas .....

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nder their management, wherein it is revealed that large amount of cash deposits have been made on regularly basis. It was further stated that details of such deposit have been sought and therefore in such circumstances the order was sought from the competent authority for extension of further time to issue show-cause notice in connection with the goods detained under the Panchanama dated 6.12.2013 from the premises and Bank Locker of the appellant and his family members. 2.4 The Commissioner ha .....

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ed after completion of the investigation. It is further recorded that in the course of investigation after 6.12.2013, the appellant and his relatives have submitted large number of invoices in support of their claim of acquisition of the assets under detention through licit means and sources. It is further noticed that the said details have been submitted on 2.6.2014. Accordingly, the learned Commissioner found force in the stand taken by the investigating agency that these documents need to be .....

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ording of reasonable belief under which the goods were taken charge of and/or detailed. Further, the Panchanama does not spell out that the detained goods were seized for the purpose of enquiry under the Customs Act. Consequently rendering the entire detention or the seizure as illegal and bad in law. It was further stated that granting extension of time as prayed by the DRI for issue of show-cause notice would amount to endorsing and legalizing the said illegal detention. It was further contend .....

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epresentation dated 2.2.2014, 3.3.2014 and 10.3.2014 along with prayer for return of the detained/seized assets. In spite of the submission of the supporting bills and details regarding the assets, no further investigation were carried out by the DRI. It is further stated that for failure of the investigating agency to inquire or investigate the stand taken by the appellant in Feb- March, 2014, with regards to the assets, the investigating officers were under the provisions of Section 102, were .....

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cles, they further inquired by resorting to and ascertaining further documents collected from the appellant including recording of statement to justify and/or convincing the existence of reasonable ground for extension of time. This is evident on the face of the record as effort to cause further inquiry of the detained goods/assets was taken up by the officers of DRI only a few days before the issue of show-cause notice dated 2.6.2014. It was further urged that the Revenue has no reasonable beli .....

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ix months. The DRI believe that the high value of goods/assets found during the search at residence of the appellant, there is reasonable belief to be liable for confiscation and detained rightly for further investigation. Further, it appears from the Panchanama dated 6.12.2013 that had the appellant or any of his relatives have provided any legal admissible proof for purchase or procurement of the said goods, the DRI may not have detained the seized goods for further investigation and according .....

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ate the completion of investigation in time bound manner. The ld. Commissioner has further observed that the statement of the appellant was recorded on 26.5.2014 by the DRI, wherein he was asked to explain sources of the cash deposit, for which the noticee had sought time to provide the details. Thus, there is no force in the allegation of the appellant that the department has not utilized stipulated time for completion of investigation with regard to the detained goods. 2.7 As regards the stand .....

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nce of any document to the contrary in support of the said case. 2.8 As regards the allegation of colourable exercise of power based on the facts that further investigation were taken up prior to extension of time for show-cause notice in question, the ld. Commissioner observed that the show-cause notice clearly states that notice in respect of the detained goods was almost ready and as the appellant have submitted large number of documents, time is required for going through the same. It was fu .....

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ders and was in the judicial custody till 20.2.2014, thus, there is reasonable reason for not including the detained/seized goods vide Panchanama dated 6.12.2013 in the show-cause notice dated 13.01.2014, as the investigation was pending and proposal to confiscate the same without affording an opportunity to the assessee to produce evidence in support of his legitimate claim, as that would have been allegation of violation of principles of natural justice. Accordingly, it was further held that f .....

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ugned order extending the time limit under Section 110(2) is legal and proper and whether the officers of DRI had sufficient time and opportunity for investigating into the details of the assets detained vide Panchanama dated 6.12.2013, and further investigation only a few days before the issue of show-cause notice for extension of further time for issue of show-cause notice, vide notice dated 2.6.2014. 4. The ld. Counsel for the appellant, Mr. Rizwan G. Merchant has raised several grounds in su .....

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elries have been taken charge of, is illegal. (iii) The ld Commissioner of Customs further failed to appreciate that the passport of the appellant was seized and taken charge of by the officers of DRI, which amounts to impounding and such right is vested only on the Passport Officers under the Passport Act. As such, the seizure of passport is ab initio void and is against the ruling of the Honble Supreme Court as held by the Honble Bombay High Court in the case of Avinash Bhonsale Vs. Enforcem .....

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at no nexus of any nature, direct or indirect have been established or even remotely averred by the DRI neither in the Panchanama in respect of the detention/retention of these articles nor in the show-cause notice dated 13.1.2014. (v) Ld. Commissioner also failed to appreciate that neither during the course of judicial custody of the appellant from 7.12.2013 to 10.2.2014 nor after the release any attempt has been made by the DRI to establish any link between articles found and detained vide Pan .....

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power, the DRI resorted to further inquiry into the detained assets only a few days before the expiry of time limit and have issued the show-cause notice for further extension of time for issue of show-cause notice in respect of the detained assets. (vii) The ld Commissioner has further failed to appreciate that since the request of release the detained items was turned down, the appellant had preferred application for release of the detained items before the Additional Chief Metropolitan Magis .....

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as moved by the DRI before the Court, for obtaining order to record the statement of the applicant and to investigate with respect to the item detained or charge taken of. That the ld. Commissioner have further erred in not appreciating that the necessary information regarding the seized assets have already been disclosed to the investigating agency as early as in Feb, 2014 and for slackness on part of the DRI to investigate, no further extension of time could have been allowed by the impugned o .....

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iate that there is no allegation of non-cooperation on part of the appellant in investigation and as such timely completion was the duty of the investigating officers and failure to do so without any reasonable cause cannot be a ground for extension of time, as held in the impugned order. Ordinarily, the extension of time for issue of show-cause notice is to be considered only when there are certain issues which unknowingly have prevented the investigating officers for issuing show-cause notice, .....

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(xii) The ld. Counsel further urges that subsequent to the passing of the impugned order, further investigation continued and show-cause notice dated 2.12.2014 have been issued to the appellant, his wife Mrs. Dolly Sabharwal, his son Shri Pavneesh Sabharwal, daughter-in-law Smt. Gureen Kaur and father-in-law of his son Shri Amarjeet Singh Sethi, wherein the parties have been asked to show cause as to why BMW car having purchase value of ₹ 40.04 lakhs and a Jaguar Car having purchase value .....

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roceeds of smuggled goods (Red Sanders) should not be confiscated under the provisions of Section 121 of the Customs Act, 1962. It is further pointed out by the Counsel that it is admitted fact as recorded in para 5 of SCN dated 2.12.2014, that BMW car s invoice, value of which is ₹ 44.04 lakhs, out of which ₹ 30 lakhs was financed by HDFC Bank. For purchase of Jaguar car as per detail invoice, the price of which is ₹ 94.95 lakhs purchased by M/s Acer Logistics Pvt. Ltd., out o .....

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the watches have also been explained. It is further urged that the Metropolitan Magistrate has only rejected the application of the appellant for return of the detained goods only on the ground of jurisdiction, as the Magistrate observed that power to release of detained goods is with the Commissioner of Customs. It is further urged that in para 10 of the show-cause notice dated 2.12.2014, it is admitted by the Revenue that the appellant had applied for provisional release, filed on 7.10.2014 an .....

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dated 2.12.2014 that an amount of ₹ 10 lakhs was down payment/booking amount for purchase of Jaguar car. ₹ 10 lakhs was paid to Tata Motors by way of RTGS payment on 25.3.2013 and further ₹ 37,23,446/- was paid by cheque dated 7.5.2013 to Tata Motors issued from the Bank Account of the M/s Acer Logistics. The Revenue has further admitted in para 11.6 of the show-cause notice dated 2.12.2014 that analysis of the current account of M/s Acer Logistics Pvt. Ltd. maintained with Axi .....

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iled regularly return of their income and assets and as such the allegation in the show-cause notice dated 2.12.2014, all the assets not properly explained, is bad in law. (xv) As per para 15 of the show-cause notice dated 2.12.2014, Mrs. Dolly Sabharwal, wife of the appellant in her statement recorded on 12.5.2014 has stated that articles of jewelry found and detained, major part of its is very old and received in gift from her mother-in-law and father-in-law and that part of it were re-designe .....

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nd has also submitted old valuation report dated 20.3.1986 and 22.6.1986, issued by the Govt. Approved valuer. (xvi) Further from para 16.1 of the show-cause notice, it is on record that the letter dated 30.5.2014 was received from Mr. Amarjeet Singh Sethi, who claimed that he had given various items of jewelry as gift to his daughter Gureen Kaur at the wedding and have also submitted invoice, detail for the purchase thereof. (xvii) It is further urged in para 19.4 of the SCN that the Income dec .....

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It is also recorded in para 19 of the show-cause notice as per statement of the appellant, that all of the cash received during the period in consideration, by the Customs department, about 90% of the turn-over is received through Banking transaction and only 8 to 10% are received in cash, being received from walk-in customers. Further the appellant has turn-over around ₹ 25 crores per annum during the period in question under the investigation. (xvii) In para 20 of the show-cause notice .....

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cash deposits in various accounts operated by him and his family members. Accordingly, the show-cause notice dated 2.6.2014 was issued with proposal for extension of time limit, which was allowed by the impugned order. Accordingly, the Counsel for the appellant urges that the impugned order is against provisions of law and is a colourable exercise of power and the same is fit to be set aside and further by way of consequential relief, the detained goods be ordered to be released to the appellant .....

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rned AR relies on the impugned order and states that the impugned order is legal and in accordance with law and fit to be upheld. 6. Considering the question in issue, we take notice of the relevant provisions of the Customs Act being Sections 105, 110, 110A, 111, 121 and 122. 6.1 Section 105 of the Act provides that competent officers of Customs, or in any area adjoining the land frontier or the coast of India, has reason to believe that any goods are liable to confiscation, or any documents or .....

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urs, the words Commissioner of Customs were substituted. 6.2 Section 110 (1) provides that If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. 6.3 Sub-section (2) of Secti .....

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the proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. 6.5 Section 110A of the Act empowers the adjudicating authority to release any goods seized under Section 110 to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. 6.6 Section 111 of the Act provides for confiscation of improperly imported goods, etc., which have improperly b .....

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wledge or reason to believe that the goods are smuggled goods. 7. It is evident from perusal of the panchanama dated 6.12.2013 that no condition precedent as required under Section 110 of the Act, is recorded at the time of detaining the goods/assets found to the effect that subject goods are liable for confiscation under the provisions of the Customs Act. Further no satisfaction have been recorded as required under sub-section 3 of the Section 110 to the effect that the documents or things deta .....

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2.2013 till 10.2.2014 being the period of judicial custody. Further, during the said custody, the DRI have never sought permission to interrogate the appellant. Even after the release from the judicial custody, the appellant was attending the office of the DRI every week particularly on Monday and such other days as he may have been advised. Further, the appellant and his family members had approached the Revenue authority for release of the goods by filing a detailed representation as to the na .....

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nt reason shown by the investigation officers for extension of the period for six months for issue of show-cause notice. The observation of the learned Commissioner that pursuant to recording of the statement of the appellant on 26.5.2014, wherein the appellant was asked about explanation for various cash deposit and the appellant had sought time to provide the requisite details and as such the Revenue was justified in seeking extension of time for issuing show-cause notice. It is writ large on .....

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