1971 (8) TMI 98 - HC - Customs

Show Cause Notice showing one ground for confiscation and penalty but confiscation and penalty imposed on different grounds illegal

Summary

Issues Involved:
1. Jurisdiction and application of mind in issuing the show cause notice.
2. Basis of the charge and sufficiency of evidence.
3. Compliance with principles of natural justice.
4. Legal validity of the Collector's order.

Issue-wise Detailed Analysis:

1. Jurisdiction and Application of Mind in Issuing the Show Cause Notice:
The petitioner contended that the show cause notice issued by the Assistant Collector of Customs was without jurisdiction and lacked application of mind to the facts of the case. The notice alleged that the Indian currency seized represented the sale proceeds of smuggled goods of foreign origin. However, the Collector, at the time of hearing, clarified that the case was based on the sale proceeds of silver, a prohibited article, meant for export, which was not disclosed in the original notice. This discrepancy between the notice and the Collector's clarification formed the crux of the jurisdictional challenge.

2. Basis of the Charge and Sufficiency of Evidence:
The petitioner argued that the evidence presented did not establish that the silver was brought to Daman for export. The statements of witnesses, particularly Mr. B.P. Savlekar, were inconsistent. His initial statement did not mention the alleged facts that were later included in his second statement, recorded just before the issuance of the show cause notice. The petitioner also highlighted that there was no restriction on carrying silver within India at the relevant time, undermining the basis of the charge that the currency represented sale proceeds of silver meant for export.

3. Compliance with Principles of Natural Justice:
The petitioner claimed that the Collector's order was based on a new case not disclosed in the show cause notice, violating principles of natural justice. The notice accused the petitioner of dealing in goods of foreign origin, while the Collector's decision was based on the sale of silver for export. This shift in the basis of the charge deprived the petitioner of a fair opportunity to defend himself. The court agreed, noting that the grounds stated in the show cause notice and those found by the Collector were diametrically opposed, causing prejudice to the petitioner.

4. Legal Validity of the Collector's Order:
The court found that the Collector's order lacked legal validity due to the procedural and substantive discrepancies. The Collector relied on improved statements and failed to establish that the petitioner brought silver to Daman for export. The court emphasized that the obligation under Section 124 of the Customs Act requires a precise and clear statement of facts constituting the customs offense in the show cause notice, which was not met in this case. Consequently, the order of confiscation and penalty was quashed.

Judgment:
The court allowed the petition, quashing and setting aside the Collector of Customs' order dated nil October 1969. The court directed that the amount of Rs. 51,000/- seized from the petitioner be returned. The rule was made absolute, and the respondents were ordered to pay the costs to the petitioner. The petition was allowed, underscoring the importance of adherence to procedural fairness and clear communication of charges in customs proceedings.