TMI Blog1997 (12) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... -luck would have it there was a raid on 11th June, 1993 by the Enforcement Directorate at the premises of Bagla and the petitioner's car was also caught in the net. According to the petitioner since then he has been denied possession of the car. The car has been all along under the control and domain of the respondents. The present writ petition has been led for quashing the impugned action on the part of the respondents in detaining the petitioner's said car and for the release of the car. The petitioner further claims exemplary costs in view of the fact that he has been deprived of the use of the car for such long period on account of illegal acts of respondents and the deterioration of the car in the process on account of its remaining idle and in disuse for such a long time. 3.According to the petitioner the policy at the relevant time with regard to import of foreign made cars was as under :- [This is as per Import Trade Control Public Notice No. 21 ITC (PN) 92-97, dated 26-6-1992]. Subject : Import of cars/vehicles, etc. without a licence. Attention is invited to the Export Policy April 1992 March 1997, published under the Ministry of Commerce Public Notice No. 1-ITC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s admittedly a brand new passenger car not exceeding four cylinders and not exceeding 1600 c.c. Rajan Sabharwal, the importer had been abroad continuously for a period more than two years prior to this return to India for permanent settlement. The payment for the car was made abroad before his return to India which is apparent from a letter dated 10th August, 1992 issued by M/s. BMW Asia (P) Limited, Singapore. The above-quoted Policy also shows that there is no restriction on the importer regarding further sale of the car in open-market. The question for consideration is, on the basis of these facts and the further fact that the customs authorities had cleared the car and delivered its possession to the petitioner after compliance of all the formalities and payments of customs duty, is the seizure or detention of the car by the respondents not wholly illegal, arbitrary and unjustified? 6.At this stage certain further facts in relation to the present case may be noted. After the raid at the premises of Bagla on 11th June, 1993, the car in question was impounded resulting in petitioner being deprived of its custody and possession. The petitioner addressed a letter dated 4th August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was filed as Annexure R-1 to the counter affidavit. Besides taking up the above defences, the learned counsel for the respondent urged that the proper course for the petitioner is to reply to the show cause notice and face the adjudication proceedings and abide by their result. 9.I have carefully considered the stand of the respondents. So far as the aspect of valid customs clearance is concerned, the basic fallacy in the stand of the respondents in their reliance on a notification, i.e., Public Notice No. 202/(PN)/92-97, dated 30th March, 1994. The import in the present case was during the period 1992-93. Rajan Sabharwal returned to India in August 1992. The agreement between the petitioner and Rajan Sabharwal is of 30th October, 1992. The car arrived in India in the middle of 1993 because it was cleared from customs after payment of duty and compliance of all other formalities on 5th June, 1993. In these facts I fail to understand how the public notice containing the policy regarding import of cars which came into force on 30th March, 1994 can be made applicable. The public notice which is relevant according to the petitioner is the one which has been quoted in the earlier pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to from where the money for payment of the price of car came. It also does not talk of source of money for payment of customs duty in foreign exchange. Therefore, import and clearance of car cannot be said to be illegal. Secondly, at best it may turn out to be a case of violation of the Foreign Exchange Regulation Act, for which we note that no action has been taken so far. Thus the impugned action of the customs authorities is wholly arbitrary, unjustified and unwarranted by law. 11.This brings me to the next point, i.e., the show cause notice having been issued beyond the period of six months as provided in Section 110(2) of the Customs Act. The respondents are taking the effective date of seizing the vehicle in question as 5th March, 1995 when they proposed the impugned panchanama but still left the car in the superdagi of S.P. Bagla. From the date the show cause notice is obviously within six months. But according to the petitioner, he was deprived of the custody of the car in June 1993 and, therefore, taking that date into consideration, the show cause notice is much beyond six months and the respondent are liable to return the car in question in view of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession and not merely of custody of goods. What follows from this is that physical deprivation of the custody or enjoyment of the goods in question is that test for determining whether there was seizure of goods. Whether the goods are kept at place A or place B is not so much material. If the goods are detained against the wishes of a party, that is good enough as a seizure. Moreover, as noted earlier, the respondent should always say in response to the notices of the petitioner that the goods were not seized by them. The stand now being taking by the respondents is by way of taking advantage of their own conduct. The respondents cannot be permitted to do this. From the facts on record it necessarily follows that the show cause notice dated 8th May, 1995 was issued much beyond the period of six months from the date of seizure of the vehicle, as prescribed under Section 110(2) of the Custom Act and for this reason also the respondents are liable to return the car in question to the petitioner. 12.In the above view of the matter it cannot be said that the petitioner should be asked to face the adjudication proceedings in response to the show cause notice. The show cause notice it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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