TMI Blog1989 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice about any adjudication proceedings, that the appellants Department could no longer retain the currency and that, therefore, a writ of Mandamus ought to be issued to them, directing them to return the currency to him. 3. The appellants resisted the action, admitting that the seizure was made on the day alleged, but contended that the seizure was for contravention of the provisions of Section 9(1)(b) of the Act, that adjudication proceedings under Section 51 of the Act had really been commenced, since even on 8-5-1987 i.e., within a period of one year a show cause notice, as contemplated under Rule 3(1) of the Adjudication Proceedings and Appeal Rules, 1974 (hereinafter referred to as the Rules) had been issued and since the respondent evaded service, the notice was served in the manner provided for in law and that in view of the fact, that even on 8-5-1987 a show cause notice was issued, the enabling provision of Section 41 of the Act justifies their retention of the property beyond the period of one year. 4. Learned single Judge, relied upon the judgment of v. Ramaswami, J., (as he then was) in R. Sivarajan v. Deputy Collector, Madras (Vol. 12) 1987 Excise and Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 34 or Section 36 or Section 37 or of a requisition or summons under Section 39 or Section 40, any documents is furnished or seized and any officer of Enforcement has reason to believe that the said document would be evidence of the contravention of any of the provisions of this Act or of any rule, direction or order made there under and that it would be necessary to retain the document in his custody, he may so retain the document in his custody, he may so retain the said document for a period not exceeding one year or if, before the expiry of the said period of one year, any proceedings - (i) under Section 51 have been commenced, until the disposal of those proceedings, including the proceedings, if any, before the Appellate Board and the High Court, or (ii) under Section 56 have been commenced before a court, until the document has been filed in the court." A reading of the above provision clearly indicates that it is concerned primarily with documents that have come into the possession of the Enforcement Officers under Sections 33, 34, 36,37,39 and 40. Section 33 enables the Enforcement to require any person who has to submit returns of foreign ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g from taking action within a reasonable time and putting the matter into cold storage, thereby causing considerable hardship to the individuals affected. Section 41, therefore, imposes a time limit, as a safeguard against any such possible abuse. It is, therefore, provided that within the period of one year from, either commencement of the adjudication under Section 51 or commencement of a prosecution under Section 56, the documents ought to be returned to the party. One cannot also miss the fact that the Enforcement Officers, even in proceedings conducted under the Act have a right to summon documents from any person. 10. Keeping this in the background, we shall now deal with the procedure contemplated for adjudication proceedings under Section 51 of the Act, which is as follows : "For the purpose of adjudging under Section 50 whether any person has committed a contravention of any of the provisions of this Act (other than those referred to in that Section) or of any rule, direction or order made thereunder, the adjudicating officer shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity for making a representation in the matter and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (1) and the personal hearing referred to in sub-rules (3), (4) and (5) may, at the request of the person concerned, be waived." A reading of the rule would show that the rule contemplates that the Enforcement Officers shall initially place before the adjudicating officers materials which would make out contravention of any of the provisions of the Act. On that, the adjudicating officer issues a show cause notice to the person wherein the nature of the offence alleged to have been committed by him is to be stated. The person is called upon to show cause, if any, as to why adjudication proceedings ought not to be held. In the event of a person showing sufficient cause, which the adjudicating officer accepts, the proceedings under Section 51 of the Act come to an end. If, however, no cause is shown or the cause shown is unacceptable, the proceedings continue and the person is required to appear before the adjudicating officer, either in person or through his lawyer. The oral enquiry then commences. Under Rule 3(4) the adjudicating officer is to explain to the person or his counsel, as the case may be, the offence that is alleged to have been committed by such person, indicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, therefore, contemplates first show cause notice informing the person about the grounds on which it is proposed to confiscate the goods or impose a penalty, an opportunity for making a representation in writing and an opportunity of being heard in the matter. Section 110(2) of the Customs Act makes it explicit that the goods cannot be retained beyond the period of six months unless meantime, a show cause notice is issued under Section 124(a) of the Customs Act. 13. The contents of the show cause notice contemplated in the two provisions are more or less similar. While under Rule 3(1) of the Rules a show cause has to indicate the nature of the offence alleged to have been committed by him, Section 124(a) of the Customs Act requires the show cause notice to inform the person of the grounds on which it is proposed to confiscate the goods or impose a penalty. A show cause notice, therefore, in either of these proceedings would contain the factual averments and the other details which would make out the contravention committed by the person which he has to meet. Under the Customs Act, final orders are passed after giving an opportunity for representation and hearing. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued. The learned Judge, later in R. Sivarajan v. Deputy Director (Vol.12) 1987 Excise and Customs Cases 256, has gone elaborately into this aspect and has equated the notice under Rule 3(1) to an office memo, issued before disciplinary proceedings are initiated in ordinary civil cases in regard to government servants. With due respect to the learned Judge, we are not inclined to agree with the above view of the learned Judge for the reasons already enumerated above. The decision of the learned Judge in KA. Abdul Khader v. The Deputy Director of Enforcement Information Directorate, Madras (A.I.R. 1976 Madras 233) was the subject matter of Writ Appeal in W.A. No. 65 of 1976, wherein even though the question that directly came up for decision was, whether the date to be reckoned with, was the date of issuance of the notice or the date of service of the notice, the Bench also discussed the issue as to when adjudication proceedings under Section 51 of the Act commence, when a show cause notice is issued under Rule 3(1) and the requirements of Section 19(g) (Present section being 41) are satisfied. V. Ramaswami, J. (as he then was) in his later decision in R. Sivarajan v. Deputy Director ..... X X X X Extracts X X X X X X X X Extracts X X X X
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