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TMI Blog2018 (9) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... nally. (B) Pending hearing and final disposal of the present petition, your Lordships may be pleased to direct the respondent Nos. 2 and 3 to forthwith return all gold ornaments/gold items and two Apple I-Phones seized under panchnama dated 11-2-2017 on the conditions that may be deemed fit by this Hon'ble Court;" 3. Since there is no dispute about date on which goods in question came to be seized by Customs authorities, our attention is invited by Mr. Paresh Dave, Learned Advocate appearing for the petitioners to various provisions of Customs Act, 1962 in the context of the prayer made herein above. Section 110 about seizure of goods, documents and things and particularly sub-section (2) of Section 110 including the proviso therein, Section 124 about issue of show cause notice before confiscation of goods etc., 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a show cause notice dated 9-8-2017 had been issued under Section 124 of the Act in terms of the amendment by Act 23 of 2012 provided under Section 153(b) of the Act that copy of the show cause notice was also fixed on the notice board of Customs House, Ahmedabad, on 10-8-2017 which referred to service/delivery of such notice at the residential address of the petitioner and dropped inside the house by drawing panchnama dated 10-8-2017. Therefore, according to respondent No. 2 show cause notice for the seizure which was made on 11-2-2017 and the notice is served on 10-8-2017 within the time limit of six months provided under Section 110(2) of the Customs Act, 1962 goods so seized were not required to be released. The above stand according to Learned Advocate for the petitioner is contrary to the scheme contained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was dispatched on 9-8-2017 and displayed on the notice board of the customs authority on 10-8-2017 as envisaged under Section 153(b) and thus, compliance so envisaged by the Act, 1962. Mr. Amin, Learned Counsel for the respondent would further contend that plain reading of sub-section (2) of Section 110 is about giving a notice under Clause (a) of Section 124 within six months of the seizure of the goods and such notice was dispatched on 9-8-2017 and given to the petitioner on 10-8-2017, for which, panchnama was drawn on the very same day with the residential house was found locked and no person was present there. That giving notice as required, for which, manner was also followed up by the authority which specified Section 153 in toto and it is also submitted that upon issuance of such notice now adjudication proceedings 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs and no such record is available or produced before this Court or even averments made in this regard as the case may be Customs authority- respondent herein is on giving notice to the petitioner on 10-8-2017 by drawing panchnama and the manner service is described therein. That clause (b) of Section 153 will come into play only upon providing necessary proof with regard to attempts made by authority namely dispatching the notice by registered post or by such recognized courier and in case if notices is not served by either of the mode as above, clause (b) procedure is to be followed namely that affixing the notice on the notice board of the custom house. That would be the correct and precise interpretation of clauses (a) and (b) of Section 153 of the Act upon plain reading of the language of both the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;by tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by the Commissioner of Customs; (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house". 10. It is not in dispute that seizure of goods in question was effected on 11-2-2017 in the arrival hall of terminal No. 2 of SVPI Airport, Ahmedabad, in presence of panchas and seizure memo was issued accordingly on the same day. Further, request was made by the petitioners for returning seized ornaments and 'I-phones' 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/SVPI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control) Act and also that of Section 124 of Customs Act, 1962 refer to decisions of the Apex Court in the case of Narasimhiah v. Singri Gowda, AIR 1966 SC 330 where giving notice was interpreted that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given the giving is not complete. Even the Apex Court also considered concept of reasonable opportunity to be given of being heard and other aspects. Further by referring to Section 110(2) of Customs Act and Section 79 of the Gold (Control) Act, this Court referred to the case of Assistant Collector 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so envisaged under Section 110(2) read with Section 124 and Section 153 of the Customs Act, 1962 and the case on hand is covered by the decision to which we have made reference in earlier paragraph and the case of the petitioners is further strengthened that procedure followed by drawing panchnama etc. was of no use and the same cannot be termed as compliance with provisions of the Act, 1962, Even the decision relied on by Mr. Mitesh Amin, Learned Advocate for the respondents in the case of Commissioner of Central Excise, Indore (supra) submitted that the Bombay High Court simply 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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