9911796707
TMI Blog1988 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's possession on 12th May 1973 under Section 111 of the Customs Act, 1962 (hereinafter called 'the Act') and the imposition of penalty of Rs. 2,00,000/- under Section 112 of the Act and as well as the order, dated 10th August, 1979 passed by the Central Board of Excise and Customs dismissing the petitioner's appeal and thereafter the order dated 8th January, 1981 passed by the Government of India dismissing the petitioner's revision. 2. It appears that the petitioner along with his father and brothers migrated to India from Pakistan. It is stated 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 associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Central Excise under which it was held that the petitioner had acquired the possession of the wrist watches and these were smuggled goods and imposed a penalty of Rs. 2,00,000/-. The High Court noted the facts as below : "On 12-5-1973 in a search made of the petitioner's bed room at Durg, a total of 564 wrist watches of foreign mark valued at Rs. 87,455/- were seized from a suit case, a secret cavity in a locked steel almirah, and behind the almirah concealed in a bundle of waste-paper from the petitioner's possession during his presence. 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even care to refute by availing the opportunity given to him at the enquiry, the Collector of Central Excise passed the order, dated 26-12-1975, as aforesaid. This order has been affirmed on appeal by the Board and thereafter in revision by the Government of India." 3. It was contended before the High Court by the petitioner's counsel that the notice, dated 4th May, 1974 issued under Section 124(a) of the Act was issued beyond the period of six months of the seizure of goods made on 12-5-1973 and as such the entire proceedings were invalid for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing six months. Extension of time takes away a valuable right of a party whose goods are proposed to be seized. Such deprivation of the valueable right must be upon notice otherwise it violates the principles of natural justice. In the aforesaid decision of this Court in Assistant Collector of Customs v. Charan Das Malhotra (supra), this Court affirmed the view of the Calcutta High Court that the power under the proviso was quasi-judicial, or at any rate, one requiring a judicial approach. This Court reiterated that the right to restoration 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no evidence to determine the value of the watches so that the quantum of penalty could not be determined for want of such evidence. It was contended that determination of quantum was arbitrary. It appears, however, 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. Furthermore, these facts must be considered in conjunction with the fact that there was a statement by the petitioner recorded on 30th May, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,455/-even at that time. On that there is no dispute. The penalty permissible is upto five times the value of the goods. The High Court noted that the benefit derived by the petitioner by non-payment of the amount of Rs. 2,00,000/- at least for ten years is sufficient indication that the penalty could not be treated as arbitrary. That of course, by itself in our opinion is not always a safe guide. But in the facts and circumstances of this case, the penalty was not heavy and the High Court was right. It is true that this Court in Malhotra's case (supra) had laid down that the penalty could not be arbitrary and excessive. But in the facts of this case, it was no so. As far as the value of the wrist watches is Rs. 87,455/-, it was not argitr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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