2018 (1) TMI 1395 - HC - Central Excise

Seizure and sealing of machines - alleged illegal manufacture of Cigarettes - Held that - After seizure of the machines under panchnama dated 15-5-2017 the only show-cause notice that the department has issued so far is dated 13-11-2017. This show-cause notice contains various proposals of levy of unpaid excise duty with interest and penalty and of confiscation of the excisable goods but does not contain any proposal for confiscation of the machinery. By now, well over six months have passed. In terms of sub-section (2) of Section 110 of the Act such machinery must be returned to the petitioner. The respondents are directed to remove the seals from the machines of the petitioner seized under panchnama dated 15-5-2017 on the condition that the petitioner shall file an undertaking before the department that he shall not use such machinery for the purpose of manufacturing any excisable goods without registration and payment of duties as and when needed - petition allowed in part.

Summary

Issues:
Petition for releasing seized machines under panchnama dated 15-5-2017.

Analysis:
The petitioner had purchased three machines for manufacturing cigarettes, which were seized by Excise Authorities on 15-5-2017 under suspicion of illegal use without excise registration and duty payment. The petitioner argued that the machines were not operational when purchased and were still under repair. Respondent filed an affidavit stating prima facie evidence of illegal manufacturing activity without an Excise license, indicating an ongoing investigation and potential issuance of a show cause notice.

The department later issued a show cause notice on 13-11-2017, demanding unpaid excise duty, penalties, and proposing confiscation of excisable goods but did not include a proposal for confiscating the seized machinery. The court noted that over six months had passed since the seizure, and as per Section 110 of the Customs Act, if no notice is given within six months, the seized goods must be returned to the owner. Since the show cause notice did not propose confiscation of the machines, the court directed the respondents to remove the seals from the machines seized under the panchnama dated 15-5-2017, with the condition that the petitioner must undertake not to use the machinery for manufacturing excisable goods without proper registration and duty payment.

The judgment highlighted the legal provisions under Section 110 and 124 of the Customs Act, granting power to seize goods and issue show cause notices before confiscation. The court emphasized that the show cause notice did not propose confiscation of the machines, and as such, the machinery should be returned to the petitioner. The court's decision balanced the petitioner's right to possess the machines with the department's ongoing case, ensuring that the department's proceedings were not hindered by the order. Ultimately, the petition was disposed of, granting relief to the petitioner regarding the seized machines.