TMI Blog2017 (2) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises questions the legality and validity of a show cause notice issued by Respondent No.3. 2 It is common ground that the Respondents to this Petition are the authorities under the Customs Act, 1962 (the said Act ). 3 The claim of the Petitioner is that in the normal course of trade and business he placed an order on international parties. Referring to the documents in that regard, it is submitted that the shipment arrived and the Petitioner presented the necessary bills of entry for home consumption on 21st March 2016. The assessable value was declared and duty liability was assessed. However, the clearance of the consignment was put on hold. Thereafter, the goods were examined and a Panchanama was drawn on 22nd March 2016. A seizure memo was issued on 23rd March 2016. It is the case of the Petitioner that after this process and completion of the investigation the goods ought to have been released provisionally at-least. However, the Petitioner was served with the show cause notice. Though the show cause notice bears the date of 22nd September, 2016, the issue according to the Petitioner is very clear and on facts. The show cause notice was dispatched on 23rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 may consider relevant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service of order, decision, etc. Any order or decision passed or any summons or notice issued under this Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by [registered post or by such courier as may be approved by the [Principal Commissioner of Customs or Commissioner of Customs] (b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. 7 It is relying on them that it is submitted that in the present case the show cause notice was not given within the statutory period. Once the statutorily prescribed period has not been adhered to, then, in pursuance of such a show cause notice which is ex-facie illegal and invalid, no steps can be taken. 8 There is an affidavit in reply to this Writ Petition by the Deputy Commissioner of Customs and in that affidavit it is stated that the assertion in the Writ Petition is incorrect. Factually, the submission that the show cause notice is given beyond the period of six months, is incorrect. It was issued within six months. Relying upon Section 147 of the said Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Mr Jetly would submit that there is no substance in the Writ Petition and it should be dismissed. 11 For properly appreciating the rival contention, we would make a reference to Section 110 and which we have reproduced above. That enables seizure of the goods, documents and things. We need not refer to seizure action and its validity because that is not a issue before us. Subsection (2) of the said provision requires that once the goods are seized 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. We are not concerned with the proviso, as well. Therefore, whether the notice contemplated by clause (a) of Section 124 is given within six months of the seizure or not, is the sole question. Ordinarily, we would have not interfered with such a factual matter as projected before us and in the event the Petitioner is aggrieved and dissatisfied with the adjudication order, the action proposed to be taken in terms of the show cause notice, while such show notice was adjudicated he could have urged that the show cause notice was not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the said M/s DV Shipping to the competent authority. It is unfortunate that parties like the Petitioner seek to derive an advantage or benefit and by contending that the issue raised is pure legal but at the same time suppressing a very vital and material fact. This material fact having been suppressed by the Petitioner ordinarily, we would have been justified in dismissing the Writ Petition on this ground alone. 15 However, we find that there is no affidavit in rejoinder filed by the Petitioner. In paragraphs 2 and 7 of his affidavit in reply, the Deputy Commissioner states as under:- 2.At the outset I say that the petition is devoid of merits and deserves to be summarily rejected. I say that goods were seized on 23-03-2016 under section 110 of the Customs Act, 1961 (for short said Act). I say that Show Cause Notice was issued on 22-09- 2016 (within six months as provided under section 110 (2) of the said Act). I say that the CHA M/s DV Shipping, representing the Petitioner vide letter dated 22-09-2016 submitted that having been authorized by the Petitioner, he had deputed Mr. Abhishek Dave, Kardex No.D 1844, to receive the Show Cause Notice on his behalf. I say ..... X X X X Extracts X X X X X X X X Extracts X X X X
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