1989 (8) TMI 88 - HC - Customs

Warehousing (Customs) - Non-clearance from warehouse within stipulated time and non-payment of rent - Confiscation

Summary

Issues Involved:
1. Whether Section 48 of the Customs Act controls Sections 61 and 62 of the Major Port Trusts Act.
2. Validity of the confiscation order dated 1st September 1979 issued by the Collector of Customs.
3. Whether the petitioners were given a show cause notice and an opportunity to be heard as mandated by Section 124 of the Customs Act.
4. Impact of non-service of the confiscation order on the petitioners' right to appeal.

Issue-wise Detailed Analysis:

1. Whether Section 48 of the Customs Act controls Sections 61 and 62 of the Major Port Trusts Act:
The court rejected the contention that Section 48 of the Customs Act controls Sections 61 and 62 of the Major Port Trusts Act. It was clarified that the provisions under these two statutes operate independently in different fields. Section 48 of the Customs Act pertains to the sale of goods by the person having custody thereof, under the direction of the Customs Department. Conversely, Sections 61 and 62 of the Major Port Trusts Act grant the Port Trust independent authority to sell goods for reasons such as non-payment of rent or failure to clear goods from the warehouse within a stipulated time. The court emphasized that both authorities act independently, and their actions are not controlled by each other.

2. Validity of the confiscation order dated 1st September 1979 issued by the Collector of Customs:
The court found that the impugned order of confiscation under Section 111 of the Customs Act was issued without following the mandatory legal formalities. The confiscation order was set aside on the grounds of non-compliance with Section 124 of the Customs Act, which mandates issuing a show cause notice and providing an opportunity for representation and a hearing before confiscating goods. The court noted that no such notice was issued, and no opportunity for representation or hearing was provided to the petitioners.

3. Whether the petitioners were given a show cause notice and an opportunity to be heard as mandated by Section 124 of the Customs Act:
The court highlighted the absence of compliance with Section 124 of the Customs Act. It was undisputed that no show cause notice was issued to the petitioners, and they were not given an opportunity to make a representation or be heard. This failure to follow the prescribed legal formalities rendered the confiscation order invalid. The court emphasized the importance of these procedural safeguards, which ensure adherence to principles of natural justice and provide an opportunity for the petitioners to contest the classification of goods.

4. Impact of non-service of the confiscation order on the petitioners' right to appeal:
The court found that the confiscation order was never served on the petitioners, depriving them of their right to appeal. The petitioners only became aware of the order when they filed a previous petition in 1983. The non-service of the order denied the petitioners a valuable opportunity to contest the order before an appellate forum. The court rejected the respondents' argument regarding the delay in filing the petition, noting that the petitioners were unaware of the confiscation order and its implications. The court concluded that the non-service of the order and the lack of procedural compliance rendered the order legally non-existent.

Conclusion:
The petition succeeded, and the confiscation order dated 1st September 1979 was set aside. The court ruled that the impugned order was invalid due to non-compliance with mandatory procedural requirements, including the issuance of a show cause notice and providing an opportunity for representation and hearing. The court emphasized the independent operation of the Customs Act and the Major Port Trusts Act and rejected the contention that Section 48 of the Customs Act controlled Sections 61 and 62 of the Major Port Trusts Act. The rule was made absolute with no order as to costs.