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Vicky Sharma Versus Union of India and Others

2017 (2) TMI 709 - BOMBAY HIGH COURT

Legality and validity of SCN - petitioner relies upon sub-section-2 of Section 110 to submit that if 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 - Held that: - when the show cause notice was given within six months, “if given” is to mean “to be issued and served”, that has also taken place within s .....

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the Petitioner- the sole Proprietor carrying on business in the name and style of M/s Maa Tara 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 th .....

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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 September, 2016 and delivered on 27th September, 2016. 4 It is in these circumstances that Mr Singh, learned counsel appearing for the Petitioner would submit that the goods have to be .....

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n six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. There is a proviso thereto which enables the Commissioner to extend the period of six months, on sufficient cause being shown, for another six months. Mr. Singh would submit that this proviso is not attracted in the facts and circumstances of this case. 5 Then, our attention is invited to Section 124 of the said Act to submit that this provision has a bearing be .....

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a penalty. Mr. Singh fairly states that it is not the question of the authority or jurisdiction to issue the show cause notice but it is the question of legality and validity of the same. Mr. Singh then relies upon Section 153 of the said Act to submit that any order or decision passed or any summons or notice issued under the said Act, shall be served by tendering an order, decision, summons or notice or sending it in the manner provided by Clause (a) of Section 153. 6 The three pro .....

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r. (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 tim .....

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hall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section ( .....

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ioner of Customs] for a period not exceeding six months. (3) 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. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs. 124. Issue of show cause notice before confiscation of goods, etc. -

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in 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 to in clause (b) may, at the request of the person concerned, be oral. 153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued u .....

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w 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 pe .....

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cannot assume that the Customs House Agent has been empowered and is authorized to receive the show cause notice. There is requirement of a specific authorization. That is not produced by the Revenue. The absence of authority, therefore, would indicate that the Revenue cannot rely on the delivery of a copy of this show cause notice or the notice itself on M/s. DV Shipping. Secondly, it is clear that the packet containing the show cause notice was put in dispatch on 23rd September, 201 .....

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ld submit that there is a basic fallacy in the arguments of Mr. Singh. True it is that the goods were seized on 23rd March, 2016. However, the show cause notice was issued on 22nd September, 2016. That is within six months as provided under sub-section-2 of Section 110 of the Customs Act. The Customs House Agent M/s. D. V. Shipping representing the Petitioner addressed a letter dated 22nd September, 2016 stating that it was duly authorized by the Petitioner to accept the show cause no .....

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sued within the statutory period. For these reasons 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 go .....

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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 given within the statutory period. In the event that contention or stand of the assessee is not accepted, the assessee could have challenged the findings and order on the show cause notice in further appeal and raised this issue. However, the Peti .....

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o be confiscated or penalty is imposable, has been issued and within the requisite statutory period. The Revenue also says that Section-153 provides by Clause (a) of tendering the order / decision / summons or notice or sending it by Registered Post, has been complied with. In this case, the notice has been duly tendered and the Customs House Agent was in receipt of the same. That has transpired within a period of six months. 13 We agree with the Revenue and Mr. Jetly on this count. W .....

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the role of a Customs House Agent and played in this case. The Petitioner should have been fair enough to disclose before this Court that in this case there is a Customs House Agent - M/s DV Shipping. That M/s DV Shipping has addressed a letter dated 22nd September, 2016 and copy of which has been annexed as Exhibit-4 to the affidavit-in-reply. The issue of authority of M/s DV Shipping is purely an after thought. There is suppression from this Court of the crucial fact that M/s DV Shi .....

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itioner 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 sai .....

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Notice Board at Nhava Sheva on 22-09-2016. I say that Show Cause Notice dated 22-09-2016 was handed over by NSPU to Dispatch Section on 22-09- 2016 itself which was posted by Speed Post on 23- 09-2016. I say that in view of Section 9 of the General Clauses Act, 1897 the period of six months from the date of seizure i.e. 23-03-2016 would end on 23-09-2016 ( by excluding date of seizure i.e. 23-03- 2016) and since the Show Cause Notice was issued and physically collected by the CHA on 22-09-2016, .....

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marked as Exhibit-4 is a copy of letter dated 22-09-2016. 16 If the Petitioner had intended to raise the issue of the authority of said Abhishek Dave, then, the Petitioner would have specifically denied it. What we have on record is a communication dated 22nd September, 2016 addressed by M/s DV Shipping Pvt Ltd to the Deputy Commissioner of Customs. The subject of this letter / communication is authorization to receive the show cause notice. It is specifically said in this communicat .....

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