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2016 (5) TMI 125 - DELHI HIGH COURT

2016 (5) TMI 125 - DELHI HIGH COURT - 2016 (337) E.L.T. 44 (Del.) - Validity of impugned order passed by the learned Single Judge - Directions provided to release the goods imported by respondent - Show cause notice in terms of Section 110(2) of the Customs Act, 1962 are not issued in view of the expiry of six months from the date of seizure of goods - Appellant submitted that the goods were actually detained under Section 17(2) of the Customs Act and there was no confiscation under Section 110 .....

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o appear before an officer of the customs/appellate authority may do so other than where appearance is required under Section 108, by an authorized representative. Section 146A(2) provides that an authorized representative would include a relative/regular employee/customs broker licensed under Section 146/legal practitioner/person who has acquired such qualification as may be specified. Similarly, Section 147 of the Act provides for liability of principal and agent. Section 147(1) provides that .....

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ecifically authorized to accept. The right of owner of goods cannot be defeated without prior notice on him. Hence, the contention of the appellant that service of the show cause notice could also be effected on the Custom Agent in view of Sections 146, 146A & 147 of the Act is a contention without merits and the view of the learned Single Judge that for a custom agent to be able to receive notice of show cause in circumstance as stated above is agreed. - Decided against the revenue - LPA 88/201 .....

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ent (petitioner therein). The writ petition was filed seeking a writ in the nature of certiorari to quash the order dated 23.01.2015 issued by the appellant and for a writ in the nature of mandamus for directions to release the goods imported by the respondent vide bill of entry No. 6097564 and 6097566 both dated 15.07.2014 and seized by panchnamas dated 25.07.2014. Other reliefs are also sought. 2. The relevant facts as stated in the writ petition, which led to filing of the petition by the res .....

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ficers after conducting an examination on 25.07.2014. 3. The respondent states that on 04.08.2014 a detailed representation was sent to the Additional Director General-DZU, Delhi pointing out that the imported goods were covered and used as quilt covers as they had been assembled by sewing and the three sides were closed whereas one side was kept open for filling up. A request was made for release of the goods. Another firm had sent a similar sample of goods to the Textile Committee (Government .....

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re based on a provisional re-assessment of the price done by the appellants. 5. The appellants, in the meantime, allegedly issued a show cause notice dated 23.01.2015 to the respondent to show cause as to why the time limit for issuance of show cause notice should not be extended in terms of the provisions of Section 110 (2) of the Customs Act, 1962 for a further period of six months due to expected expiry of six months from the date of the panchnama. A personal hearing was proposed to be held o .....

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urportedly dated 23.01.2015. The order of the Commissioner of Customs which is impugned in the present writ petition was also though dated 23.01.2015 was dispatched on 31.01.2015. Reliance was placed on envelopes in which the show cause notice and the impugned order were received, and the tracking records of the two documents to claim that the show cause notice and the impugned order are back dated. Hence, the present writ petition was filed stating that in view of the expiry of six months from .....

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was observed that the consignment contained 203 bales of polyester Quilt Covers in running length of printed fabric which had been folded at mid length and having loose stitching on two sides, 214 cartons of 100% Polyester Bed Sheets-three pieces packs, Bed Sheet(with 2 pillow covers) and 298 bales respectively made of HDPE bags. The bales were found to contain bundles of polyester woven fabric sheets which were folded at mid length and having loose stitching on two sides and the same had been .....

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t of sample was submitted to the Textile Committee. On a conjoint reading of the reports, it is urged that the quilt covers/quilt shells were made of polyester fabric which were basically two kinds of fabrics i.e. Polyester Woven Fabric and Polyester Knitted Fabric. The stitching on the two sides was so loose that even for the sake of making quilts, the concerned side would have to be stitched again i.e. stitching was redundant. 7. It was urged that as the investigation in the matter could not b .....

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id date with a request to appear for a personal hearing either at 1230 hours or 1430 hours on the same date. The customs broker submitted a letter on the same date conveying that they did not want any personal hearing on behalf of the importers. It is only thereafter that the impugned order dated 23.01.2015 was passed by the Commissioner of Customs extending the period by six months. Reliance was placed on Sections 146, 146A and 147 of the Act to submit that authorized customs brokers were duly .....

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e was served on G Card holder of the customs agent. The court noted that Section 153 of the Act provides the manner in which any order or decision passed or summons or notice issued under the Act are required to be served. The order further noted that in 2012 an amendment took place in the said Section 153(a) of the Act by deleting the phrase or to his agents and whereby the said Section now provides that an order or decision passed or summons or notice issued under the Act shall be served by se .....

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an agent or customs agent would not be authorized to receive show cause notice. Reliance was also placed on Regulation 2 (c) and 11 (a) of the Customs Brokers Licensing Regulations, 2013 to cull out the scope of duties of a customs agent. Based on the said Regulations, the order holds that it is no part of the usual and ordinary duty of a customs agent to accept service of orders, summons, decision or notices issued by the customs authorities. In a specific case, the importer or the exporter can .....

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uld not in any manner whatsoever affect the investigation which was underway. It is only the seized goods which would have to be returned to the respondent and no more inasmuch as the appellant would be free to continue their investigation and proceed to the next step towards trial by complying with the provisions of Section 124 of the Act. 9. We have heard the learned counsel for the parties and gone through the record. 10. Learned counsel appearing for the appellant has submitted that the good .....

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sel for the appellant. A perusal of the impugned order shows that no such submission about Section 17(2) of the Customs Act was made before the learned Single Judge. It is for the first time before us that the submission has been made. A perusal of Section 17 of the Act shows that the same deals with self-assessment of duty, if any, leviable on the goods. A bare perusal of the said provisions would show that there is no provision for detention of goods. This contention of the learned counsel for .....

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per 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. ………… (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 per .....

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tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by Commissioner of Customs (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. 14. Hence, a notice issued under the Act can be served by sending it by registered post or by approved courier and if for some reason, it cannot be served, by affixing it on the notice board of .....

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person for whom it is intended or to his agent. (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. Hence, under the un-amended provisions of Section 153, an agent could also be served an order, or decision, or summons or notice issued under the Act. Clearly the amendment has been introduced to ensure service on the person concerned. 16. In the present case, none of the procedures as stipul .....

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(1) reads as follows:- 146. License for customs brokers.- (1) No person shall carry on business as a customs broker relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a license granted in this behalf in accordance with the regulations. ………………… 18. Similarly, Section 146(A) of the Act provides that any person who is to appear before an officer of the customs/appellate .....

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an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purpose of this section, authorised representative means a person authorised referred to in sub-section (1) to appear on this behalf, being- (a) his relative or regular employee; or (b) a .....

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g with the functions of a custom agent is Section 146 of the Act. This Section defines the role of a custom agent as relating to the business of entry or departure of a conveyance, or the import or export of goods at any customs station. 21. Similarly, Rule 2(c) of the Customs Broker Licensing Regulations, 2013 states as follows: 2(c) Customs Broker means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyance .....

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ide India. In our opinion, confiscation/seizure of goods would not fall within the meaning of import of goods as used in Section 146 of the Act and Regulation 2(c) of the Customs Broker Licensing Regulations, 2013. Such confiscation being penal in nature cannot be termed to be a part of the duty of a custom agent. Service would have to be effected on the owner of the goods personally or through agent so specifically authorized to accept. 23. Reference in this context may be had to the judgment o .....

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