TMI Blog2020 (12) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 to seize such goods. Having reason to believe by the proper officer that any goods are liable to confiscation is the sine qua non for exercise of the power of seizure. The expression 'reason to believe' is an expression of considerable import and in the context of the Customs Act, confers jurisdiction upon the proper officer to seize goods. It cannot be that seizure is made by one officer and the reasons to believe are recorded by another officer. Secondly, the proper officer who made the seizure must have reasons to believe that the seized goods are liable to confiscation. Seizure of goods is not an end in itself. It is a discretionary power vested upon the proper officer who has reasons to believe that the goods to be seized are liable to confiscation. No such reasons to believe is discernible in the panchnama, not to speak of in the seizure memo. It is apparent that on the date of seizure, the bills of entry were in the name of the petitioner and the petitioner had not (and still has not) claimed any benefit under the Notification No.25/99Customs dated 28.02.1999. It may be mentioned that office of the Commissioner of Customs had informed DRI authorities that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny which is engaged in the business of import and export of copper rods, bare wires, ferrous and non-ferrous metal, etc. Petitioner holds importer exporter code bearing No.0317500457 dated 05.04.2017. 4. Petitioner had imported copper wire rods 8 MM electrolytic tough pitch copper wire rod as per ASTM B49 in two consignments vide bills of lading dated 03.12.2019 and 07.12.2019. In the course of import, petitioner contemplated high seas sale of the imported goods to M/s. Chandrashekhar Industries, subsequently added as respondent No.4 to the present proceeding in terms of order dated 29.09.2020. Respondent No.4 was required to pay the agreed amount for the high seas sale by entering into a written agreement. However, only an oral agreement was entered into by and between the petitioner and respondent No.4. Unfortunately, without making any payment towards the high seas sale but on the basis of the oral agreement, two bills of entry dated 10.12.2019 were filed by respondent No.4 in respect of the two imported consignments. 5. It is stated that after filing of the bills of entry, respondent No.4 declined to make the agreed payment and instead requested for cancellation of the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (respondent No.4) to M/s. Nikom Copper and Conductors Private Limited (petitioner). The amended bills of entry were filed on merit rate of duty without claiming benefit of Notification No.25/99-Customs dated 28.02.1999. 10.1. Central Intelligence Unit, Nhava Sheva vide letter dated 23.12.2019 made a request that any amendment of 15 bills of entry as mentioned in the letter should not be considered. These 15 bills of entry included the two bills of entry of the petitioner. 10.2. Directorate of Revenue Intelligence (DRI), Ahmedabad vide letter dated 23.04.2020 informed that a case against respondent No.4 was booked for wrongful availment of benefit under Notification No.25/99Customs dated 28.02.1999. As such DRI requested to nullify the amendments made in the two bills of entry dated 10.12.2019. Request of DRI to cancel the amendment was accepted by the department on 29.04.2020. Following such acceptance of request, the importer in respect of the said two bills of entry became respondent No.4. 10.3. It is stated that the act of cancellation of high seas sale arose after 16.12.2019 when the premises of the importer, high seas seller and the concerned customs broker were sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of respondent No.4 for examination. The two bills of entry were amended on 18.12.2019 whereby name of the importer was changed from M/s. Chandrashekhar Industries (respondent No.4) to M/s. Nikom Copper and Conductors Private Limited (petitioner). The amended bills of entry were filed on merit rate of duty without claiming benefit of Notification No.25/99Customs dated 28.02.1999. 11.4. The held consignments covered by the two bills of entry were jointly examined by officials of DRI, Vapi and Nhava Sheva customs authorities on 09.01.2020 whereafter the seizure was made on 09.01.2020. Claim of the petitioner that it had entered into oral agreement with respondent No.4 for high seas sale of the consignments has been disputed and denied. It is submitted that there is no question of any oral agreement in high seas sale. It is the contention of respondent No.3 that respondent No.4 was working under the control of Shri. Jayant Shantilal Mirani who was the actual owner of the high seas seller i.e., the petitioner. The act of cancellation of high seas sale was done after 16.12.2019 when the premises of the importer, high seas seller and the concerned customs broker were searched and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure is ex-facie without jurisdiction and therefore, per se illegal. Referring to section 110 of the Customs Act, he submits that the sine qua non for seizure of goods is reason to believe by the proper officer that the imported goods are liable to confiscation. He submits that the seizure memo does not record any reason to believe that the goods were liable to be confiscated. Referring to section 111 of the Customs Act, he submits that imported goods can be confiscated only under that provision which has a number of clauses but none of the clauses of section 111 would be attracted to the facts and circumstances of the case. While denying the allegations made against the petitioner in the affidavits filed by respondent Nos.1 and 2 on the one hand and by respondent No.3 on the other hand, he submits that the seizure memo must be capable of standing on its own; its validity must be judged from the reasons mentioned in the seizure memo itself. Furnishing of reasons subsequently to justify the seizure cannot validate an invalid seizure though the grounds given in the affidavit are wholly incorrect and untenable. 14.1. Mr. Shah submits that even if the averments made in the affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure does not record any reason to believe that the goods were liable to confiscation, he submits that the seizure memo has to be read together with the panchnama which clearly mentioned that there was contravention of the Customs Act in which event the goods are liable to be confiscated. His further contention is that petitioner had resorted to amendment of the two bills of entry after it became aware of the search operations carried out by the DRI in the premises of respondent No.4 and two other firms and after a case was registered against respondent No.4. Such amendments of the bills of entry were not bona fide and were rightly cancelled by the respondents. In support of his submissions, Mr. Venegaonkar has painstakingly taken the Court to the various documents annexed to the affidavit of respondent No.3 and extensively relied upon the said documents. 17. Submissions made by learned counsel for the parties have been duly considered. Also perused the materials on record. 18. Question for consideration in this writ petition is the legality and validity of the seizure memo dated 09.01.2020 whereby the two consignments covered by the two bills of entry dated 10.12.2019 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of section 110 is relevant and the same is quoted hereunder:- 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 remove, transport, store or take physical possession of the seized goods for any reason, the proper officer may give custody of the seized goods to the owner of the goods or the beneficial owner or any person holding himself out to be the importer, or any other person from whose custody such goods have been seized, on execution of an undertaking by such person that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Provided further that where it is not practicable to seize any such goods, the proper officer may serve an order on the owner of the goods or the beneficial owner or any person holding himself out to be importer, or any other person from whose custody such goods have been found, directing that such person shall not remove, part with, or otherwise deal with such goods except with the previous per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief in the existence of reasons inducing the belief. In other words, the Income Tax Officer must on information at his disposal believe that income had been under-assessed by reason of failure to fully and truly disclose all material facts necessary for assessment. Such a belief is not to be based on mere suspicion; it must be founded upon information. 23. Supreme Court in S. Narayanappa Vs. Commissioner of Income Tax, 63 ITR 219 again had the occasion to examine this expression in the context of section 34 of the Indian Income Tax Act, 1922. Reiterating what was held in Calcutta Discount Company Limited (supra), it was pointed out that the expression 'reason to believe' does not mean a purely subjective satisfaction on the part of the Income Tax Officer. The belief must be held in good faith: it cannot be merely a pretence. It is open to the court to examine the question as to whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief. To that extent, action of the Income Tax Officer in starting proceedings under section 34 is open to challenge in a court of law. 24. Again in Sheo Nath Singh Vs. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any income chargeable to tax has escaped assessment for any assessment year, he may assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the re-assessment proceedings. This Court observed that the basic postulate which underlines section 147 is formation of the belief by the Assessing Officer that any income chargeable to tax has escaped assessment for any assessment year. In other words, the Assessing Officer must have reason to believe that income chargeable to tax for a particular assessment year has escaped assessment for the said year. The reasons which are recorded by the Assessing Officer for reopening an assessment are the only reasons which can be considered when the formation of the belief is impugned. Recording of reasons distinguishes an objective from a subjective exercise of power and is a check against arbitrary exercise of power. The reasons which are recorded cannot be supplemented subsequently by affidavits. 27. A Division Bench of Punjab Haryana High Court in MAPSA Tapes Private Limited Vs. Union of India, 2006 (201) ELT 7 while examining chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the reasons for quashing the order of seizure was that there was no indication in the seizure order that the proper officer had reason to believe that the goods were liable for confiscation. 30. Having noticed the above, we may now advert to the panchnama dated 09.01.2020. This panchnama was drawn at the premises where the seizure memo was made. It was signed by two panchas i.e., Shri. Chetan Tukaram Mundhe and Shri. Mayur Krushna Patil. It was drawn by Shri. Amit Kumar Sharma, Investigating Officer, Central Investigation Unit at the Nhava Sheva Port. After narrating the imports and amendment to the bills of entry, it was recorded that the goods which were de-stuffed from the containers were imported under Notification No.25/1999-Customs dated 28.02.1999 by the original importer M/s. Chandrashekhar Industries (respondent No.4) though presently the name of importer on the two bills of entry was M/s. Nikom Copper and Conductors Private Limited (petitioner). The officer informed the panchas that respondent No.4 had contravened the provisions of the said notification dated 28.02.1999 by misusing it. Hence, the officer informed that the copper coils were liable to be seized under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 in response to letter dated 08.01.2020 for providing documents relating to consignments of respondent No.4 (Exhibit-B). In that letter, it was mentioned that in both the bills of entry, the name of the original importer was M/s. Nikom Copper and Conductors Private Limited (petitioner) which has been mentioned in the Import General Manifest (IGM) and the bills of lading. The two bills of entry dated 10.12.2019 were filed in the name of respondent No.4 on high seas sale basis but respondent No.4 did not submit any documents before filing of bills of entry on the basis of high seas sale. Thereafter respondent No.4 through its customs broker requested for amendment in the importer s name by submitting NOCs from both the parties. The said request was allowed and the name of the importer was changed from M/ s. Chandrashekhar Industries (respondent No.4) to M/s. Nikom Copper and Conductors Private Limited (petitioner) as there was no change in the original bills of lading and IGM. The letter further mentioned that the amendment was allowed on 18.12.2019 and letter from the Central Intelligence Unit was received by the Commissionerate on 23.12.2019. 32.1. DRI, Zonal Unit, Ahmedaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of an agreement / contract which has to be signed by both the buyer and the seller and duly notarized. Therefore, respondents have rightly contended that the high seas sale entered into by and between the petitioner and respondent No.4 was no sale in the eye of law as it was done orally. If the high seas sale was not a sale in the eye of law then respondent No.4 could not have filed the two bills of entry relating to the two import consignments. This is more so when the bills of lading and IGM were in the name of the petitioner. In such circumstances, the customs authorities at Nhava Sheva had rightly allowed the amendments prayed for. As on the date of seizure i.e., 09.01.2020, the two bills of entry were in the name of the petitioner and the petitioner had not sought any concession or exemption or benefit under Notification No.25/99Customs dated 28.02.1999. In such circumstances, there could not have been any reason to believe that the said imported goods had contravened any of the provisions of section 111 dealing with confiscation and hence liable to seizure under section 110. That apart, all the developments mentioned above are post seizure developments which could have no b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the beneficiary of the amendment. Without putting the petitioner to notice and without giving an opportunity of hearing to the petitioner, the amendments which were carried out on 18.12.2019 could not have been unilaterally cancelled after 4/5 months. Such cancellation of amendment would, therefore, be a nullity having no legal sanctity. 38. In this connection, we may refer to a Division Bench decision of this Court in WASP Pump Private Limited Vs. Union of India, 2008 (230) ELT 405. In that case, when an objection as to availing the writ jurisdiction was made on the ground of having alternative remedy, this Court declared that it is a well settled proposition of law that if an order is a nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced. 39. Therefore, in our considered opinion, subsequent cancellation of the amendments to the two bills of entry would make no material difference at all to the illegality of the seizure. 40. That being the position and upon thorough consideration of all aspects of the matter, we are of the view that the impugned seizure memo dated 09.01.2020 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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