TMI Blog1988 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... There was an assertion to this effect in the collector's order, the assertion remained uncontroverted by any specific evidence and also by failure to urge this point. In that view of the matter, the inference drawn by the High Court that such notice was given as contemplated under Section 110(2), in our opinion, was not unwarranted. As the High Court noted that the value of the watches was mentioned as one of the particulars in the show cause notice given to the petitioner and this value was not refuted by the petitioner in his reply. The petitioner did not avail himself of the opportunity at any stage to oppose the extention of time or to refute the allegations made in the show cause notice given thereafter.This provision had been subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the petitioner started business of cutlory in Indira Market Durg and has got this separate business from other two brothers. The petitioner further asserted that he was not also associated in any business with his cousin Hariram or business of his father. He stated that he lives separately from his brother and father. In or about April, 1966, the petitioner purchased a piece of land for Rs. 6,250/- from one Yeshwant Ram under the registered sale deed in respect of the plot bearing Khasra No. 1167 admeasuring about 182 sq. ft. Similarly his brothers had also purchased plot adjoining the plot of the petitioner. Since, 1973, the petitioner stated that he was living in two temporary rooms constructed by his brother and petitioner's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A panchnama was prepared at the same time mentioning these facts. The petitioner found himself unable to make any statement at that time on account of which recording of his statement was deferred. However, the petitioner went out of station on 14-5-1973. His statement was then recorded on 30-5-1973, as soon as he was available for this purpose. In his statement Annexure R-III duly signed by him, he admitted these facts and merely denied knowledge of the manner in which the watches came to be in his house. The petitioner was also given a notice to show cause why the period of six months fixed by Section 110(2) of the Customs Act should not be extended but no reply was given by him till 10-11-1973 or even thereafter, therefore, by an order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this reason. It was also contended that the extension of the period of six months by another period of six months in accordance with the proviso to Sub-section (2) of Section 110 could not be made ex parte without notice to the petitioner. Reliance was placed on the decision of this Court in Assistant Collector of Customs v. Charan Das Malhotra 1983 (13) E.L.T. 1477 (S.C) = 1971 3 S.C.R. 802. The High Court found that this contention had not been urged before the lower authorities. However, the High Court noted that the Collector's order, dated 26th December, 1975 had specifically mentioned that a show cause notice was issued to the petitioner for extension of the period for issue of notice in accordance with Section 110(2) of the Act by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on a extension being granted, even though such extension is possible within a year from the date of the seizure. Therefore, according to this Court an ex parte determination by the collector would expose his decision to be one-sided and perhaps one based on an incorrect statement of facts. How then can it be said that his determination that a sufficient cause exists is just and fair if he has done it before by one-sided picture without any means to check it unless there is an opportunity to the other side to correct or controvert it? But in the facts of this case a notice has been given and it has been so found from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations made in the show cause notice given thereafter. Furthermore, these facts must be considered in conjunction with the fact that there was a statement by the petitioner recorded on 30th May, 1973. Section 123 of the Act provides as follows : "123(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are 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 the goods were seized, claims to be the owner thereof, also on such other person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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