TMI Blog2024 (2) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Section 110 (2) mandates that where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure, the goods shall be returned to the person from whose possession they were seized. Proviso to Section 110 (2) grants power to the Principal Commissioner of Customs or Commissioner of Customs for reasons to be recorded in writing to extend the said period by a further period of six months. As held in Mohd. Salman Khan there is no provision under the Act which permits detention of goods instead of seizure. The Custom Department cannot take shelter under the device of detention in order to avoid the consequences of seizure. In terms of Section 110 (2) of the Act if the Show Cause Notice under Section 124 of the Act is not issued within the statutory period the goods have to be released. By resorting to detention instead of seizure the custom authorities cannot circumvent the mandate of Section 110 (2) of the Act - In the instant case, the Gold Chains were taken possession by the Custom Authorities by issuing a detention receipt which infact amounted to seizure of the said Gold Chains. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said illegal import of gold. 5. By the subject petitions, the petitioners seek release of the gold chains that have been seized from the petitioners under the garb of a detention receipt. 6. Reference may be had to the judgment of a co-ordinate bench of this Court in Mohd. Salman Khan vs UOI (2016) 337 ELT 513 , wherein a co-ordinate bench has held that there is no provision in the Customs Act 1962 hereinafter referred to as the [ Act ] which permits detention of goods in lieu of seizure. Said bench has noticed that since no show cause notice was issued under section 124 (a) of the Act within six months of the detention/ seizure, the goods were liable to be returned to the person from whose possession they have been seized in terms of section 110 (2) of the Act. 7. Reference may be had to section 124 of the Act which reads as under:- 124. Issue of show cause 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods shall be returned to the person from whose possession they were seized. Proviso to Section 110 (2) grants power to the Principal Commissioner of Customs or Commissioner of Customs for reasons to be recorded in writing to extend the said period by a further period of six months. 11. The co-ordinate bench of this Court in Mohd Salman Khan (Supra) has held that as under:- 6. In response to a specific query from the Court, learned counsel for the Respondent was unable to point out any provision in the Act that permitted detention of goods in lieu of seizure . She was also unable to say if there was any protocol or manual devised by the Department of Customs for timely disposal of applications for release of seized goods. She repeatedly stated that the detention of the currency in the present case was at the Petitioner's own request and that it was the Petitioner who failed to come forward to produce the documents necessary to satisfy the Customs Department that he was entitled to the release of the seized currency in his favour. 7. At the outset, it requires to be observed that the legislative intent has made clear in Section 110(2) of the Act which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that what was effected on 17th June, 2014 was a seizure of Nepalese currency from the Petitioner. That the seized currency was in the possession of the Petitioner and seized from him is also not in dispute. 11. If that is the position, then under Section 110(2) of the Act a SCN had to be given under Section 124(a) of the Act within six months of 17th June, 2014. With no such SCN having been given, the inevitable consequence, therefore, is that as mandated by Section 110(2) of the Act, the seized goods shall be returned to the person from whose possession it was seized . Consequently, the Respondents are directed to release the Nepalese currency for which a detention receipt was issued on 17th June, 2014, to the Petitioner upon him presenting himself with a certified copy of this order before the Superintendent of the warehouse (where the currency is presently kept by the Respondents) not later than two weeks from today. The writ petition is disposed of with the above terms. (underlying supplied) 12. As held in Mohd. Salman Khan (Supra) there is no provision under the Act which permits detention of goods instead of seizure. The Custom Department cannot take shelt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions are allowed. The respondents/Customs Authorities are directed to forthwith release the gold chains seized from the petitioners in terms of section 110 (2) of the Act. 19. Since the contention of the respondents is that the articles have not yet been appraised/valued in terms of the weight and purity, it is directed that at the time of release, petitioners or their duly authorized representatives shall be personally present before the Proper Officer so that Gold Chains would be appraised/valued in terms of their purity and weight. 20. It may also be noted that at the time of detention of the chains on 20.12.2022 petitioners had agreed not to dispute the payment of custom duty. Accordingly, the Proper Officer shall inform the petitioners the custom duty, if any, payable on the alleged wrongful import of the goods. On deposit of the same with the Customs Authorities, said gold chains shall be released to the petitioners forthwith. 21. It is further clarified that release of the articles would not prevent the Customs Authorities from such action as may be permissible in law in respect of the alleged wrongful import of the said chains. 22. Petitions are disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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