TMI Blog1974 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Parekh's Dresses of No. 66 Hanuman Lane, Bombay sent a consignment to M/s. Amin Stores of No. 10 Bagri Market, Calcutta through the petitioner which is a public limited company carrying on the business of road transport. The consignment note of that consignment was No. 6872. The consignment was purported to contain readymade garments. Both the consignor and the consignee were ultimately found to be non-existent fictitious firms and the consignment was found on contain 347 pieces of foreign watches. In the adjudication proceeding that subsequently followed none turned up to claim the watches. 3.On September 2, 1967 the Customs Authorities acting on an information searched the business premises of the petitioner at Calcutta and recovered the consignment under suspicious circumstances in spite of a determined attempt on the part of the employees of the petitioner company to secret the actual consignment and mislead the authorities conducting the search by interpolating the same consignment number to another package. When recovered under such circumstances the customs authorities seized the goods on a reasonable ground for believing that those goods were smuggled goods. 4.On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed by an order dated February 1, 1972. Feeling aggrieved by the aforesaid four orders, namely, one dated May 25, 1969 of the Collector, two orders dated May 30, 1970 and November 7, 1970 of the Board and the one dated February 1, 1972 of the Central Government the petitioner has moved this court on a writ petition and has obtained the above Rule. The Rule is being contested by the respondents who have filed an affidavit-in-opposition. 9. Mr. Sen appearing on behalf of the petitioners has first contended that the entire proceeding is illegal and without jurisdiction inasmuch as the show cause notice itself was issued on an extension of time granted on an ex parte order of the Collector dated February 24, 1968 made under the proviso to section 110(2) of the said Act. Secondly, Mr. Sen has challenged the order imposing the penalty on merits. Lastly, Mr. Sen has contended that the petitioner's appeal to the Board had wrongly been dismissed for default for non-fulfilment of an obligation imposed as a result of an ex parte order refusing the petitioner's prayer for relief under the proviso to section 129(1) of the Act. 10.Mr. Das, learned Counsel for the respondents has conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those are liable to be confiscated. That principle was of course laid down by the Supreme Court while considering a question whether the Customs authorities can hold back goods seized even beyond the prescribed period of six months without issuing a show cause notice under section 124(a). The ex parte order of extension of time to show cause was held to have invalidated the continued seizure and detention of the goods. In that case there was no direct issue before the Supreme Court as to what be the effect of such an extension on a proceeding for consfication or imposition of penalty for which the statute has provided no limitation. Unlike the contention of Mr. Sen now before me no body pleased in that case that the time prescribed by proviso to section 110(2) is really a limitation prescribed for a proceeding under section 124 and the initiation thereof on a notice to show cause. 12.No doubt that Allahabad decision relied on by Mr. Sen may be said to be incidentally supporting him in his contention insofar the learned Judge held that the show cause notice under section 124 itself was rendered illegal because of ex parte extension of time under proviso to section 110(2). The ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Malhotra's case does not support the contention of Mr. Sen. That decision is to be read in its proper perspective. It was an appeal from a Bench decision of this court reported in AIR (1968) Cal. 28. The decision of this court was affirmed by the Supreme Court. In AIR (1968) Cal. 28 one of the prayers made before this court was return of the goods seized and in considering such a claim, this court held that the notice under section 124(a) not having been issued within six months and the extension having been illegally obtained ex parte, the goods are liable to be returned. Notice under section 124(a) was also independently challenged in that case and was set aside by this court not on the ground that it was not issued within six months as prescribed by the proviso to section 110(2) but on a totally different ground, namely, that the notice was materially vague. This court specifically considered the question as to what would be the effect of non-issue of a notice under section 124(a) within six months on the proceedings for confisaction and imposition of penalty and this court held :- "The next question is as to what is the effect of the second extension being invali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been considered and dismissed on merits. It had been so dismissed for non-compliance with the requirement of section 129 (1) after the petitioner's application for the relief contemplated by the proviso thereto was rejected ex parte or an ex parte report. The undisputed facts on the point as they appear from the records produced by Mr. Das are as follows :- 17.The petitioner preferred an appeal against the order imposing the penalty on October 3, 1969. They made a separate application on the ground of hardship as made out in the application itself praying for an order that prior deposit of the amount of penalty as required under section 129(1) may be dispensed with. On receipt of the petition of appeal an officer of the Board by an inter departmental correspondence dated October 10, 1969 forwarded the appeal petition to the Collector for a report and therein asked for the following three informations : "(i) Whether the appellant has paid the duty and or the penalty payable according to the order appealed against. (ii) The exact date of the receipt of the order appealed against by the appellant. (iii) The financial condition of the appellant". 18.The Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in the proviso to section 129(1). Mr. Das has very strongly contended that when the section itself contemplates no entertainment of an application or of hearing being given to parties to support thereof it would not be proper for this court to read into the section any such liability. 21.I am, however, unable to accept this contention of Mr. Das. Section 129(1) of the Customs Act with its proviso is set out hereunder. "(1) Where the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of customs authorities of any duty demanded in respect of goods which are not under the control of customs authorities or any penalty levied under this Act, any person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied : Provided that where in any particular case the appellate authority is of opinion that deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may in its discretion dispense with such deposit, either unconditionally or subject to such conditions as it may deem fit. (2) If upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd disposal of such a prayer. When on my views the discretion vested in the Board in this respect is judicial or quasi-judicial and when a decision of the Board on the issue involved in exercise of such discretion may—if decided against the appellant -adversely affect him, it is incumbent for the Board to hear the appellant on the application and dispose of the same on contest. This position in my view, follows from the very same principles as have been laid down by the Supreme Court in Malhotra's case referred to hereinbefore. 23.That apart, in my considered opinion, there is an additional ground for thinking that disposal of a prayer made for relief claimed under section 129(1) proviso requires a hearing. As pointed out hereinbefore disposal of such a claim involves determination of objectives tests namely either the hardship to the appellant or such other relevant facts as may enter into consideration for exercise of judicial or quasi-judicial discretion vested by the said provision. In the matter of such determination, it is but necessary that the parties who are likely to be affected by such determination of facts should be heard. Reference may be made to the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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