TMI Blog2018 (9) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... e within six months from the date of seizure which was over in the facts of the case on 11-8-2017. It is categorically stated by the petitioners that they had not received any such notice given by the authority and claim about service of notice by fixation by inserting the same in the residential premises in presence of panchas or fixation of such notice on the notice board of the Customs House etc. were denied and, for which, the petitioners had no knowledge. It was further stated that Mr. Deepak Soni, petitioner No. 1 was admitted to the hospital for heart ailment. They had not attended even their business, however, son of petitioner No. 1 was throughout available at the shop as he was looking after the business when the petitioner no. 1 was unwell. It is further borne out from the record, various summons were issued by Customs authorities to appear and cooperate but had no occasion the petitioners remained present before the authority. That apart, no record is available or produced before this Court that show cause notice was given in terms of Section 110(2) read with Section 124 and service thereof as envisaged under Section 153 of the Act, 1962. The action of respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., and Section 153 which governed the subject goods prior to last amendment by Finance Act, 2018. 4. One of the main contentions of Learned Advocate for the petitioners is about failure on the part of the respondent-customs authority in not following mandatory provisions of sub-section (2) of Section 110 of the Act, 1962 which lays down that the goods shall be returned to the person from whose possession the goods were seized under sub-section (1) of Section 110 and no notice in respect of thereof is given under clause (a) of Section 124 within six months of the seizure of the goods than the goods shall be returned to the person from whose possession such goods were seized. However, unnumbered proviso substituted by Finance Act, 2018 before substitution read that the period of six months may, on sufficient cause being shown be extended by the Principal Commissioner of Customs or Commissioner of Customs for a period not exceeding six months. It is further contended that Section 124 provide that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV unless the owner of the goods or such person is given a notice in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Chapter XIV of the Act, 1962 and the various decision of this Court and other High Courts interpreting the above provisions and even dispatch of the notice to the address of the person within the period of six months so prescribed does not complete the requirement namely giving of the notice. (1) Ambalal Moraraji Soni v. Union of India - AIR 1972 Gujarat 126. (2) Purshottam Jajodia v. DIR. of Revenue Intelligence, New Delhi, 2014 (307) E.L.T. 837 (Del.). (3) New Drug Chemical Co. v. Union of India - 2015 (325) E.L.T. 313 (Bom.). (4) Sai Incorporation v. Principal Commissioner of Customs (Import) - 2016 (338) E.L.T. 578 (Del.). Therefore, prayer in the writ petition deserves to be granted by allowing the writ petition. 6. Opposing the prayer for releasing the goods on the ground of failure on the part of the Customs authority to issue notice as envisaged under Section 110(2) read with Section 124 and mode of service so provided under Section 153 of the Act, Mr. Mitesh Amin, Learned Counsel for the Customs authorities would contend that upon seizure effected of the goods carried by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are completed and order-in-original is passed on 17-7-2018. Mr. Amin relied on decision of judgment in the case of Commissioner Central Excise, Indore v. Ram Kumar Agarwal reported in 2012 (280) E.L.T. 13 (M.P.) and that of High Court of Karnataka at Bengalaru dated 22-4-2015 in writ petition No. 35408 of 2014 [2015 (330) E.L.T. 148 (Kar.)] wherein it has been held that legislature does not intend to issue service of notice within six months and Karnataka High Court taking a view that dispatch of the notice which was evident from the postal record though delivered after the expiry of two days of six months was considered to be due compliance satisfying the requirement of [Sections] 110(2), 124(a) and Section 153 of the Act together. 7. Therefore, show cause notice so given to the petitioners by dispatching the same and in presence of panchas for which panchnama was drawn and in addition to above, such show cause notice was fixed on the very same day at the notice board of customs office rejection of the application of the applicant for a request to return the goods seized deserves no interference in exercise of powers under Article 226 of the Constitution of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses. 9. Having heard Learned Counsels appearing for the parties, at the outset, outcome of adjudication proceedings resulting into finality with regard to subject seizure of goods at the end of competent authority, no record is produced and no affidavit is filed in this regard. The issue about giving notice so envisaged under Section 110(2)of the Customs Act, 1962 vis- -vis Section 124 and Section 153 is no more res integra. For better appreciation and above provisions of Customs Act, 1962 we produce herein below such provisions governing seizure in the year 2017 that is before amendment carried out by Finance Act, 2018. 110. Seizure of goods, documents and things . - (1) If the proper officer has reason to believe that any goods are liable to confiscation 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. (1A) xxx (1B) xxx (a) ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ones on 19-8-2017, reminder dated 1-9-2017 wherein reference was made to seizure memo dated 11-2-2017 and various decision of Delhi High Court and also that of Supreme Court which mandated return of seizure goods in case of failure of giving notice within six months from the date of seizure which was over in the facts of the case on 11-8-2017. That reply dated 12-9-2017 was received from the office of Assistant Commissioner, Customs, Ahmedabad wherein it was stated that show cause notice dated 9-8-2017 has been issued from file No. VIII/10-12/SVPIA/0 A/2017 by the Additional Commissioner, Customs, Ahmedabad and was delivered at the residence of the petitioners under proper panchnama dated 10-8-2017 since residential premises of the petitioners was found to be locked. In addition to the above, a copy of show cause notice was also affixed on the notice board of Customs House, Ahmedabad on 10-8-2017 in terms of provisions of Section 153(b) of the Customs Act, 1962 and, therefore, seized articles were not to be released and the petitioners were requested to join the adjudication procedure. The above fact is reflected in the affidavit dated 30-10-2017 filed by Dy. Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs v. Charan Das Malhotra - AIR 1972 SC 689 [1983 (13) E.L.T. 1477 (S.C.)] in which it was held as under : The right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Consequently such a vested civil right in the respondent cannot be defeated by an ex parte order of extension of time by the Collector. An opportunity to be heard should be available even in a case where extension is granted before expiry of the initial six months, after which period alone the respondent can claim the right to return of the seized goods. Thereafter, discussing the facts of the case on hand the Division Bench held as under : Giving of the notice contemplated by Section 124 of the Customs Act and Section 79 of the Gold (Control) Act means that the notice must have been received because as pointed out by the Supreme Court in Narasimhiah s case, AIR 1966 SC 330 (supra) the giving of the notice is not complete unless and until it reaches the person concerned or its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y considered provisions of Sections 110(2), 124, 153 of the Customs Act and in the facts appeared before it, appeal filed by the authority was allowed. In the above case also the Court concluded that service of notice will be complete either by tendering or by sending the same by registered post A.D. and such facts cannot be equated with the facts of this case and that of High Court of Karnataka dated 22-4-2015 in the case of K. Abdulla Kunhi Abdul Rahaman will have no bearing on the facts of this case since it was categorically placed on record by the department that show cause notice was already despatched on 13-3-2014 which came to be delivered on the petitioner on 17-3-2014 after the expiry of two days of period of six months so envisaged under sub-section (2) of Section 110 of the Act. 15. As conjoint reading of the above, we are of the considered view that action of respondent authorities in not returning the goods seized upon failure to comply with Sections 110(2), 124 and 153 of Customs Act, is illegal and we allow this writ petition by directing the respondent Nos. 2 and 3 herein to return to the petitioners within 8 weeks from today all gold ornaments/gold it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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