TMI Blog2017 (8) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to be of foreign origin lay on the Department, which has made such a seizure. So far as the violation of Sections 46 and 47 of the Act are concerned, as has been alleged against the petitioner, in view of the findings arrived at that there was no evidence that it was of foreign origin, the said provision could be attracted only in the case of goods coming in from a third country. It has been further observed in the impugned order itself that as per Notification No. 9/96-Cus., dated 22-1-1996, issued under Section 11 of the Act, the goods are freely importable on payment of applicable Customs duty after following the procedures prescribed under the Act and, therefore, it having been asserted by the Customs Department that they had no information that the consignment in question had been smuggled from Nepal, there is no scope of invocation of the provisions of Sections 46 and 47 of the Act - confiscation not sustainable. Petition allowed - decided in favor of petitioner. - Civil Writ Jurisdiction Case No. 17950 of 2013 - - - Dated:- 15-2-2017 - Anjana Mishra, J. Shri Prabhat Ranjan, Advocate, for the Petitioner. Shri Satya Prakash Tripathy, SSC and Satya Vrat, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of cut betel nuts. The goods were off-loaded from the VPH at about 23.00 hours of 9-11-2011 and an inventory was made at about 12.29 P.M. on 10-11-2011 and the detained Wagon No. 01900 was vacated and released to the TNC of N.F. Railway, Katihar on 10-11-2011 at 12.40 hours by the Customs officials. 5. On thorough examination, it was found that 22,110 kgs. of cut betel nuts, having a gross weight of 23,430 kgs. and miscellaneous readymade garments of Made in China origin of various nature having a total value of ₹ 49,95,100/-, were seized on 10-11-2011 under Section 110 of the Act after following the proper procedures. The said seizures were made as the Customs had reasons to believe that they were being imported illegally into India violating the provisions of Sections 7, 11, 46 and 47 of the Act read with Section 3(2) of the Foreign Trade (Development Regulation) Act, 1992, which rendered the goods and packages liable for confiscation under Sections 111(d), 118 and 119 of the Act. 6. The said goods were seized as claimed in the name of Shri Sandeep Kumar Tarar (Noticee No. 1) as his name was found as the consignor and consignee on the MANIFEST handed over by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Bank guarantee and thereafter, the present order (Annexure 3) has been passed, which is being assailed in the present writ application. 10. Learned counsel for the petitioner submits that the order impugned in the present writ application is wholly illegal and arbitrary inasmuch as though there being a finding in his favour that the goods were not to be confiscated and there was no sufficient material to proceed to confiscate the goods in question under the relevant provisions of the Act, yet the adjudicating authority without going back to its finding has proceeded to confiscate the same and also imposed a penalty of ₹ 2,00,000/-, which is against the settled principle of law. 11. Learned counsel for the petitioner has further drawn the attention of this Court to Section 110 of the Act, under which the goods are purported to have been seized, stating that Section 110 does not permit such an action as there is no reason to believe that the goods were liable for confiscation. Section 110 of the Act is being quoted hereunder for ready reference : 110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods are lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extract therefrom in the presence of an officer of customs. (Underlining is mine) 12. Learned counsel for the petitioner submits that for the goods to be liable for confiscation, two factors need to be fulfilled, which, as per Section 110, are reasonability and secondly, it should also be confiscable. Learned counsel for the petitioner thus submits that there was no reason to believe that the goods in question was liable to be confiscated as they were not of foreign origin nor, under such circumstances, could they be confiscated. It is further submitted that the procedure followed for confiscation was wholly in contravention of Section 110 of the Act and such illegal confiscation could not be made in the manner, as has been done in the present case. 13. Learned counsel for the petitioner has further urged before this Court that in the case of non-notified goods, the onus to prove the same lay on the Department, which they have failed to prove. He further submits that over and above, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol Corporation v. Registrar of Trade Marks, reported in (1998) 8 SCC 1. 14. Learned counsel for the petitioner further submits that the impugned order has been passed without giving any show cause notice to the petitioner, which is wholly illegal. Coming back to the impugned order, learned counsel for the petitioner has drawn the attention of this Court to the finding, which has been recorded by the adjudicatory authority, which is quoted here under : In this regard, I find that the provisions contained under Notification No. 9/96-Cus. pertain to prohibition of import of goods other than those manufactured/produced in Nepal into India, which is specific to import from Nepal. However, I find that there is no evidence on record to suggest that the consignment in question had been smuggled from Nepal. It is observed that the courier/leaseholder had booked the consignment from Assam on the train at Guwahati. Even if the goods are found to be smuggled in nature, in the absence of any evidence that they had crossed India from Nepal, violation of provision specific to imports from Nepal cannot be invoked. Hence, I find that the provisions of Notification No. 9/96-Cus., dated 22-1-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Chapter unless the owner of the goods or such person - (a) is given a notice in writing with the prior approval of the officer of Customs not below the rank of a Deputy Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within 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. 20. The language as contained in Section 124 clearly reveals that no order confiscating any goods or imposing any penalty on any person can be made under this Chapter unless the owner of the goods has been given a reasonable opportunity of being heard in the matter. This Court is of the considered opinion that the aforementioned provision is thus mandatory and cannot be bypassed by the authority concerned. 21. With regard to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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