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TMI Blog2016 (6) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... rrival of the consignment, filed Bill of Entry with the Office of the 3rd respondent for assessment and clearance of the goods vide Bill of Entry dated 15.04.2015. The said Bill of Entry was taken up for assessment by the Appraising Group attached to the Office of the 3rd respondent, who ordered for the examination of the goods. In the meanwhile, the Officer attached to the 2nd respondent took the subject Bill of Entry for investigation and also examined the goods. On examination, the Officers attached to the 2nd respondent found that the goods were in order. Thereafter, the 2nd respondent issued summons dated 26.06.2015 under Section 108 of the Customs Act for appearance of the petitioner before him on 04.07.2015. The petitioner, by letter dated 07.07.2015, addressed to the 2nd respondent, sought for provisional release of the goods, informing him that the goods are likely to get spoiled. The provisional release was sought in terms of Section 110-A of the Customs Act read with Customs (Provisional Duty Assessment) Regulations 1963. 3. According to the petitioner, as per Section 110-A of the Customs Act, the 2nd respondent should have provisionally released the goods. Since the 2n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs for a period not exceeding six months. 5. According to the petitioner, in the instant case, the show cause notice, as mandated under Section 124(a) of the Customs Act ought to have been issued to the petitioner on or before 15.10.2015. Alternatively, if the proviso was sought to be enforced for extending the time period for issuance of the show cause notice, the Commissioner of Customs ought to have done so on or before 15.10.2015. Therefore, according to the petitioner, the continued detention of the goods is per se illegal under the provisions of Customs Act and the same have to be unconditionally released to the petitioner. Further, the petitioner contended that no show cause notice in respect of the Bill of Entry dated 15.04.2015 has been issued to the petitioner so far, nor have the respondents extended the time for issuance of the show cause notice under Section 124(a) of the Customs Act by invoking the provisions of the proviso to Section 110(2) of the Act. Further, according to the petitioner under Section 110(2) of the Customs Act, if no show cause notice is issued within six months from the date of seizure or 12 months, as the case may be, the goods shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp;shall be deemed to have been unconditionally released. If the Maserati car has not been released, the same shall be released within two weeks and the superdarinama is hereby quashed. The Writ Petition is allowed in the above terms; no costs. (iii) 2013 (293) E.L.T. 669 (P & H) [Rama Overseas Vs. Union of India] wherein the Division Bench of Punjab and Haryana High Court held as follows: "8. Keeping in view the aforesaid Division Bench judgment of this Court examining the provisions of Section 110(2) of the Act as well as the judgment of the Supreme Court in I.J.Rao's case (supra), we do not find any merit in the arguments raised by the Revenue. Mere fact that show cause notice has been issued after the filing of the present petition will not defeat the right of the petitioner to seek release of goods. The judgment in Sanjay Dutt's case (supra) interprets provisions of a different statute, whereas the judgment in I.J.Rao's case (supra) pertains to the statute in question itself. Therefore, the petitioner cannot be denied the right to possess goods for the inefficiency or in action of the Revenue for a period of more than one year." (iv)2014 (300) E.L.T. 49 (P & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to issue show cause notice is preserved, and a request is made, to release the goods taken into custody, there would be no question of unconditional release by operation of Section 110(2) of the Act. 4. However, recently Hon'ble Delhi High Court in Writ Petition(C) No.2952/2012 in the case of Jatin Ahuja V. DRI, vide decision dated 04.09.2012 [2013 (287) E.L.T. 3 (Del.)] had held that - Section 110A does not absolve or override provisions of Section 110(2) Though seized goods are released provisionally under Section 110A, if no Show Cause Notice is issued within stipulated time under Section 110(2), goods shall be returned . 5. While, the department is in the process of filling SLP against the said order, the matter has been examined in the Board. Accordingly, the following instructions are issued for strict compliance by the field formations: (1) While, Section 110(2) provides for unconditional release of the goods on non-issue of notice within the stipulated period, there is no time limit provided for issue of Show Cause Notice under Section 124 and that the proceedings of confiscation of goods and or imposition of penalty on the offender do not attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Chaganlal Gainmull Vs. Collector of Central Excise] wherein the Hon'ble Supreme Court held as follows: "3. It appears to us that the consequence that flows from the failure to issue a show cause notice under Section 124(a) within the period of six months is limited to what is envisaged in Sub-section (2) namely that the goods shall be returned to the person from whose possession they were seized. Section 110 (2), does not prescribe a period of limitation within which a show cause notice is to be issued. But if no action by way of issue of a show cause notice is initiated under Section 124(a) within the period of six months, stipulated by Section 110(2) the effect would be that the person from whom the goods were seized would become entitled to their return." (ii) 2008 (229) E.L.T. 339 (Bom.) [Jayant Hansraj Shah Vs. Union of India] wherein the Division Bench of the Bombay High Court held as follows: "10. Section 110 speaks of no notice being given under Clause (a) of Section 124 within six months of the seizure or confiscation of the goods. The procedure for confiscation of the goods can be resorted to if the goods are not provisionally released. If the owner in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation 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. [(1-A) 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 Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1-B) Where any goods, being goods specified under sub-section (1-A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of the show cause notice by another six months on sufficient cause being shown for the extension of the time. In the case on hand, though the goods were detained on 15.04.2015, till this date, the respondents have not followed the provisions of Section 110(2). The contention of the petitioner that since the 2nd respondent had passed the order for provisional release of the goods stipulating some conditions, the petitioner cannot invoke the provisions of Section 110(2) for releasing the goods unconditionally. 15. On a perusal of the counter filed by the respondents, the respondents have strangely taken a stand that there is no seizure at all. If the contention of the respondents that there is no seizure at all is accepted, then the question of provisional release under Section 110-A does not arise. As per Section 110-A, any goods, documents or things seized under Section 110, may, pending the order of the Adjudicating Authority, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Adjudicating Authority may require. When provisional release can be done only in respect of the seized goods and when the 2nd respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. It can be gathered from the above that the provisions of Section 110(2) in so far as the prescription of a time limit for holding seized goods is deemed mandatory and the consequence of not issuing a show cause notice within the period or extended period specified is clearly spelt out to be that the goods shall be returned to the person from whose possession they were seized , which is apparent from the combined reading of Section 110(2) and its proviso. The corollary is not that the Customs authorities lose jurisdiction to issue show cause notice. The object of enacting Section 110(2) of the Act is that the Officer of the Customs Department may not deprive the right to property for indefinite period to the person from whose possession the goods are seized under Sub-section (1) thereof. Sub-section (2) strikes a balance between the Revenue's power of seizure and an individual's right to get the seized goods released by prescribing a limitation period of six months from the date of seizure if no show cause notice has been issued under Section 124(a) for confiscation of the goods. Proviso to Section 110 (2) provides for extended period of limitation to validate the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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