TMI Blog2023 (7) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... 1872 has transplanted that into law binding on customs authorities too. It is apparent that, in circumstances of there being no other claimant, and even if there was, the failure to ensure strict fulfillment of section 123 of Customs Act, 1962 cannot be overcome by adjudicatory restraint, self-imposed or externally prescribed, on withholding such process from the appellant. Consequently, the appellant is either the principal noticee in proceedings initiated under section 124 of Customs Act, 1962 till conclusion or the goods are not liable for confiscation and cannot be retained any longer: the two contingencies cannot exist, to the contrary, simultaneously. Even if show cause notice for confiscation of the impugned goods is warranted by failure to discharge onus, the owner must be placed on notice; it is not the claim in the impugned order that some other claimant has surfaced and nor does entertainment of that claim fall within adjudicatory jurisdiction under Customs Act, 1962. Every deprivation of property by presumption of illegal possession is a deviation from the presumption in Indian Evidence Act, 1962 supra and is empowered by specific law to the contrary; even these stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962. The provision for confiscation is elaborately exhaustive in enumerating the places, particulars and processes that, when deviated from, bring it into play; that should be an essential element in a notice for adjudication to be credible enough to survive appellate scrutiny. One cavil of the appellant is that lack in the proceedings. 2. It was Pierre Joseph Proudhon who, in his well-known work, Said la propriete, c est le vol but even that founder of mutualist philosophy was, subsequently, willing to make a concession to exclusive ownership of labour-made wealth. The law, therefore, must tread cautiously in depriving a person of property and it would be ironical for law enforcement to be an instrument of anarchy by carefully calibrated legal moves to erase right of possession. That is the second cavil of the appellant. 3. Being tasked with collection of duty and policing of prohibition on import and export, customs law rarely permits resort to permanent deprivation of property; even after confiscation, under section 125 of Customs Act, 1962, redemption of goods is the rule rather than exception. Even retention, pending adjudication, is, advisedly, not the intent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court of Bombay on 15th February 2022 and, upon directions to the Directorate of Revenue Intelligence (DRI), to dispose of the last application within six weeks, the impugned order [order in F no. DRI/MZU/E/INT-65/2019/WP dated 30th June 2022] of Principal Additional Director General, Directorate of Revenue Intelligence (DRI) denied provisional release under section 110A of Customs Act, 1962 as well as unconditional release under section 110 of Customs Act, 1962. It does appear from the submissions of Learned Counsel for the appellant that the Commissioner of Customs (Adjudication), as the erstwhile Additional Director General (Adjudication), Directorate of Revenue Intelligence (DRI), was now to be addressed, had by communication dated 9th May 2022 expressed inability to decide the said application, whereupon the Principal Additional Director General, Directorate of Revenue Intelligence (DRI) felt obliged to step in, as the other respondent bound by the directions of the Hon ble High Court of Bombay, to apply his mind in exercising authority under section 110A of Customs Act, 1962 and section 110(2) of Customs Act, 1962. 6. Learned Counsel for the appellant submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference solely to section 129A of the Customs Act, 1962, that the Tribunal was not within its jurisdiction to entertain this appeal. It is also suggested that only the adjudicating authority could, in terms of section 110A of Customs Act, 1962, decide on provisional release, and, as held in the decision of the Hon ble Supreme Court in Union of India v. Guwahati Carbon Ltd [2012 (278) ELT 26 (SC)], that any ascertainment could be undertaken only in the manner contemplated by law. It is also submitted that, going by the decision of the Hon ble Supreme Court in Union of India v. Kirloskar Pneumatic Company [1996 (84) ELT 401 (SC)], customs authorities could not be directed to ignore or to act contrary to the provisions of the statute. He submitted that as ownership itself was cause of action for issue of show cause notice, only upon completion of adjudication proceedings could it be decided if any of the noticees were or were not owners. 8. We note that the impugned order appears to be merely an explanation of the events that have occurred since the seizure of the impugned goods and an exposition of the reasons to believe that led to the seizure attending upon further occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm of release, the impugned order has touched upon the irretrievable impediment to the adjudication process should the goods be alienated from the custody of the State. In doing so, the author of the impugned order has transcended the responsibility assigned by the Hon ble High Court to rule on facts and circumstances of a hypothetical consequence which surely is not the intent of either section 110(2) of Customs Act, 1962, brooking no contingencies in such circumstances, or of section 110A, which, too, brooks no alternative except in circumstances that may warrant absolute confiscation under section 125 of Customs Act, 1962. That is the reason for vesting, under section 110A of Customs Act, 1962, empowerment with a particular authority so that a mind, uninfluenced by external stimuli, may decide just as an authority entrusted with adjudication of the seized goods should. Here that line has been breached sufficiently enough by an external agency to jeopardize the impartiality of adjudication. 10. While the author of the order may well have claimed general authority, by reason of office, to dispose off an application under section 110A of Customs Act, 1962, in the present matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not smuggled goods shall be (a) in a case where such seizure is made from the possession of any person, (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession they were seized, claims to be the owner thereof, also on such person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. and, read with (1) No order confiscating any goods or imposing any penalty shall be made under this Chapter unless the owner of goods or such other person is given a notice .. in section 124 of Customs Act, 1962, illuminates the legal provision on the limits emplaced on adjudicatory jurisdiction and leaves no room for doubt that, contrary to the contention of Learned Authorized Representative, the statute does not confer the power of deciding ownership upon an adjudicating authority. If ownership is not acknowledged, officers of customs are not empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip but of the goods having been legally acquired by the person in possession at the time of seizure and not of anyone else. The person from whose possession goods are seized is integral to the mandate of section 124 of Customs Act, 1962 for, if the onus be discharged, no further action follows. And none has followed as far as the appellant is concerned. It is a principle in jurisprudence that possession is nine-tenths of the law and (quite ironically, in the same numeral) section 110 of Indian Evidence Act, 1872 has transplanted that into law binding on customs authorities too. It is apparent that, in circumstances of there being no other claimant, and even if there was, the failure to ensure strict fulfillment of section 123 of Customs Act, 1962 cannot be overcome by adjudicatory restraint, self-imposed or externally prescribed, on withholding such process from the appellant. Consequently, the appellant is either the principal noticee in proceedings initiated under section 124 of Customs Act, 1962 till conclusion or the goods are not liable for confiscation and cannot be retained any longer: the two contingencies cannot exist, to the contrary, simultaneously. 15. Even if show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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