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TMI Blog2023 (9) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that his baggage contained nothing illegal except that he was wearing a gold chain around his neck weighing about 100 grams, which was seized/detained vide detention receipt No. 48986 dated 18 October 2017 on the assumption that the same was imported by him from Malaysia. It is stated that the gold chain was his personal ornament which he wore before leaving for Malaysia. Raising a grievance that his gold chain was unlawfully seized, he sent three communications to the Commissioner of Customs, IGI Airport vide letters dated 27 June 2018; 05 December 2018 and 12 February 2018 bringing to his attention that he had not been issued any Show Cause Notice under Section 124(a) of the Act, and thus, the gold chain was liable to be released to him in terms of Section 110(2) of the Act. As his requests were not responded to by the respondents, this Writ Petition came to be filed praying for the following reliefs: "(i) To issue a writ of mandamus order direction thereby directing the Respondent to unconditionally release the Gold chain of the Petitioner which was seized/ detained by the Customs officers on 18.10.2017 belonging to the petitioner. (ii) To pass such other or further ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or v. Principal Commissioner and Additional Secretary to the Government of India & Ors. has already laid down the proposition of law that gold is a 'restricted item' and if the importation of gold is in the nature of smuggling within the meaning of Section 2(39) of the Act, the adjudicating authority can exercise the discretion under Section 125 of the Act to absolutely confiscate the gold items and levy not only duty but also impose fine/penalty apart from declining to redeem/release the goods. However, decision in the aforesaid case decided by this Court does not come in the way of the petitioner for grant of appropriate relief in law since, firstly, it is evident that the respondent has not followed the procedure prescribed in the Act. 6. In arriving at that conclusion, we may refer to Section 110 and Section 124 of the Act, which provide as under: "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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice before confiscation of goods, etc.-No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in [writing with the prior approval of the officer of customs not below the rank of a Deputy Commissioner of Customs, informing] him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. 7. A conjoint reading of the above referred provisions bring out that Section 110(2) categorically provides that where any goods have been seized under Sub-Section (1) and no notice thereof is given under Clause (a) of Section 124 within six months of the seizure, the goods are liable to be returned to the person from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and detained for more than a year without any notice was held to be unsustainable in law and the gold item was ordered to be released to the petitioner. 11. It is relevant to indicate that the procedure for sale of goods and application of sale proceeds is governed by section 150(1) of the Act, which provides that where any goods not being confiscated goods are to be sold or disposed of under any provision of the Act in terms of section 110(1A), a notice must be issued to the owner. At the cost of repetition, the gold chain had since been deposited in the Government Mint, Mumbai on 26 June 2018 without any notice to the petitioner, which fact was brought on the record during the hearing on 27 May 2019. 12. Thus, in the end addressing the issue as to what relief should be granted to the petitioner, we notice that detailed guidelines are in place in terms of a notification [F.No. CBIC-50711/5/2021-INV-Customs dated 03.12.2021] for the procedure to be followed for the sale of seized/confiscated gold that inter alia provides for engagement of SPMCIL [Security Printing and Minting Corporation of India Ltd] in consultation with the RBI except that Clause 3.11 thereof provides for dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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