TMI Blog2022 (2) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... s-authority in not returning the goods seized upon failure to comply with Sections 110(2), 124 and 153 of the Act, is illegal and the writ petition was allowed by directing the respondents to return all gold ornaments/gold items and two apple I-phones seized under panchnama to the petitioner within a specified period unconditionally subject to adjudication process to be carried out afresh in accordance with law. Mandate of Sub-section (2) of Section 110 of the Act is crystal clear that if no notice is given under clause (a) of section 124 of the Act for confiscation within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized provided that the Principal Commissioner of Customs for reasons to be recorded in writing can extend this period, not exceeding the period of six months and inform the concerned person from whom such goods were seized before expiry of the period so specified. It is further needed to be specified that where an order for provisional release of the seized goods has been passed under Section 110 A of the Act, the specified period of six months shall not apply - In the instant case, admittedly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as explained by him, was a forcible act thrust upon him by the respondents. 2.2 The statement of the petitioner was recorded on 04.04.2019, after the panchnama proceedings dated 03.04.2019. There was no proposal for confiscation of seized cash of ₹ 64,86,100/- and also of mobile phones, computer and documents seized during this proceeding. 2.3 A show cause notice came to be issued on 27.11.2020 in respect of the alleged illegal export by one M/s.Amira Impex in connivance of number of other persons which included the petitioner, as alleged by the respondents. This show cause notice was received by the petitioner on 14.12.2020. 2.4 As averred by the petitioner, 21 months elapsed after the seizure. No notice since had been issued within a period of six months as statutorily prescribed from date of the seizure, the seized cash and mobile phones were needed to be returned to the petitioner and his family, hence, this petition. 3. This Court at the time of issuance of notice passed the following order on 22.02.2021: 1. By way of the present petition, preferred under Article 226 of the Constitution of India, the petitioner seeks Writ of Mandamus or any other appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the present case may kindly be granted. 2. We have heard the learned advocate, Mr.S.S.Iyer, who has taken us through the various correspondences and has urged that under Section 110 of the Customs Act, 1962; the six month's period after the Seizure Panchnama on 3.4.2019 is also over on 3.4.2020 and there is not a whisper of the seized currency notes in the show cause notice dated 27.11.2020. His correspondence also has not been responded so far as this pertinent issue is concerned. According to him, it is a covered matter as in the case of Dipak Natwarlal Soni reported in 2019 (368) E.L.T. 27 (Gujarat). 3. Issue Notice for final disposal, returnable on 8.3.2021. Over and above the regular mode of service, service through e-Mode is additionally permitted. 4. In reply to the show cause notice, the respondents appeared and their reply has also been tendered before this Court. 4.1. In the affidavit-in-reply, it has been denied that there has been any violation of the provision of law. According to the respondents, since it is a case of a large scale illegal availment of the export benefits, no indulgence is necessary. It is also contended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GI are organizational structure of Central Board of Indirect Taxes and Customs. The cash seized is amount of commission and IGST refund wrongly availed. DGGI is claimed to be the proper authority to appropriate the said amount against the IGST refund wrongly availed and the cash was transferred to DGGI, Ahmedabad as the total IGST refund wrongly and illegally availed is of the tune of ₹ 3,27,61,295/-, which is alleged to be a grave economic offence and hence, request is not to interfere. 5. The learned advocate, Mr.S.S.Iyer for the petitioner and learned senior standing counsel, Mr.Priyank Lodha for the respondents-department have been heard extensively. 6. The short question for consideration is as to whether the show cause notice given under Section 124 of the Act after six months of seizure can be sustained under the law. 7. The challenge made is also to the alleged arbitrary action on the part of the respondents-authority in retaining the cash amount of ₹ 64,86,100/- along with two mobile phones and other material seized from the office of the petitioner on 03.04.2019. The seizure of goods and the cash by the respondents is under section 110 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graphs will be profitably reproduced: 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-a-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) . (b) . (c) . ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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/O 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 provisionsof 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 Customs (Air Intelligent Unit) SVPI Airport, Ahmedabad. 11. In view of the above stand it is categorically stated by the petitioners that they had not received any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initial six months ad 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 actual tender to him. Merely despatching of the notice to the address of the person does not complete the giving of the notice. I the instant case, therefore, the fact that the respondents despatched the notices by post on November 5, 1968, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering 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. 7.6 In case of Kore Koncepts vs. Deputy Commissioner of Customs (SIIB), reported in 2016(333) E.L.T.76 (Del.) where the show cause notice was not issued within stipulated period according to the Court, the seizure order would not sustain and the goods which were released earlier provisionally were held to have been released unconditionally and the Bank Guarantee furnished at the time of provisional release would cease to operate, the same also was required to be returned following the earlier decision of Jatin Ahuja vs. Union of India, reported in 2013(287) E.L.T. 3 (Del.). The High Court of Delhi in case of Jatin Ahuja (supra) held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the search proceedings had been carried out as per the panchnama drawn and placed before this Court on 03.04.2019. The statements have also been recorded on 04.04.2019 and a show cause notice had been issued on 27.11.2020 for the alleged illegal export attempted by M/s.Ameera Impex by the Additional Director of Revenue Intelligence-respondent No.4, served upon the petitioner on 14.12.2020. Admittedly, this notice of confiscation is issued beyond the prescribed statutory period of six months. 10.1 The interim reply to the said show cause notice was filed on 12.01.2021. Since not responded, a reminder had also been sent on 21.01.2021. The cash and the seized articles since continued to be with the respondents, present petition has been preferred. 10.2 Mandate of Sub-section (2) of Section 110 of the Act is crystal clear that if no notice is given under clause (a) of section 124 of the Act for confiscation within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized provided that the Principal Commissioner of Customs for reasons to be recorded in writing can extend this period, not exceeding the period of six ..... X X X X Extracts X X X X X X X X Extracts X X X X
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