2016 (3) TMI 1127 - HC - Customs

Jurisdiction of enquiry officer - implmentation of Risk Management Systems (RMS) in exports - Held that - though there are serious allegations made by the petitioner that he has taken upon himself to be vigilant in bringing the errant customs officials to book by recording their actions, by video-recording in the past years, it would be for the petitioner to establish his case insofar as the defence sought to be raised by him and the allegations sought to be put forth against the customs officials - the petitioner shall be given full opportunity to establish his case, that insofar as the goods once having been released in his favour, there was no power in the customs authority to take them to their custody, which aspect shall be addressed at the enquiry, and if the finding is that there was such power available to the authorities, the goods, which have been seized from the custody of the petitioner, shall be released in his favour, as vehemently claimed by the counsel for the petitioner. Accordingly, the petition is disposed of without prejudice to the case of the petitioner to establish his several contentions and allegations at the enquiry.

Summary

Issues involved:
Alleged demand for illegal gratification by customs officer, seizure of goods without explanation, issuance of summons without charges under Customs Act, jurisdiction of authorities, petitioner's lack of confidence in customs officers, re-examination of goods by customs authorities, bias in enquiry process, relevance of Commissioner's opinion, petitioner's request for Tribunal review.

Analysis:

1. Alleged demand for illegal gratification:
The petitioner, an importer and exporter, alleged that a customs officer demanded illegal gratification during the inspection process. The petitioner refused to pay, leading to the seizure of goods without explanation. The petitioner claimed a concerted action by customs officials due to his refusal to pay illegal gratification.

2. Seizure of goods without explanation:
The authorities seized goods meant for home consumption from the petitioner's custody without a mahazar or inventory being drawn. A subsequent raid at the petitioner's premises did not yield any incriminating material. The petitioner contended that the actions of the authorities were without jurisdiction and illegal.

3. Summons without charges under Customs Act:
The petitioner raised concerns about the issuance of summons without any charges under the Customs Act, 1962. The Division Bench directed the authorities to consider the petitioner's representation, which was rejected without proper appreciation of facts, leading to the petitioner's lack of confidence in any enquiry by customs officers.

4. Re-examination of goods by customs authorities:
The authorities claimed that the petitioner had imported laptops instead of declared computer chips. They argued that the re-examination of goods within the customs area was justified, despite the petitioner's claim that the goods had been released to his custody before being seized.

5. Bias in enquiry process:
The petitioner expressed apprehension that an enquiry by customs officers would be biased against him, as they might mechanically apply the Commissioner's opinion. The petitioner sought alternative recourse to the Tribunal to challenge the authorities' actions to avoid prejudice in the enquiry process.

6. Relevance of Commissioner's opinion:
The authorities argued that the Commissioner's opinion would not influence the enquiry process and that the petitioner's representation had already been considered. They emphasized that the enquiry officer would conduct the proceedings strictly in accordance with the law, disregarding any incidental opinions.

7. Petitioner's request for Tribunal review:
The petitioner requested the matter to be referred to the Tribunal for a fair review, expressing concerns about prejudice if the same officer who seized the goods conducted the enquiry. The Court assured that the enquiry would be conducted by a different officer, ensuring fairness and adherence to legal procedures.

In conclusion, the Court disposed of the petition, granting the petitioner an opportunity to establish his case during the enquiry process. The decision on whether the customs authorities had the power to seize the goods from the petitioner's custody would be addressed in the enquiry, with the goods to be released in the petitioner's favor if deemed appropriate. The petitioner was encouraged to present evidence supporting his contentions and allegations during the enquiry without prejudice.