2023 (7) TMI 893 - HC - Customs

Violation of the principle of natural justice - no SCN issued to the petitioners before passing the impugned orders by Additional Commissioner - HELD THAT - The nature of the order is quite drastic. When such an order was to be passed certainly, the law would require strict adherence of the principles of natural justice and by prior issuance of a show cause notice. The petitioner ought to have been put to notice of all the grounds on which the goods would be liable for confiscation and of any other consequential orders which would be attracted. It is observed that in passing the impugned order-in-original Additional Commissioner of Customs has exercised powers of confiscation and has imposed penalty Section 124 of the Customs Act 1962 which mandates issuance of a show cause notice, before confiscation of goods. Such provision stipulates that no order confiscating any goods for imposing any penalty on any person shall be made under Chapter-XV of the Customs Act, unless owners of the goods or such person is given notice in writing with prior approval of the Officer of the Customs not below the rank of an Assistant Commissioner of Customs, informing the owner or such person, on the ground on which the goods are proposed to be confiscated or penalty imposed. Such person is required to be given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice, against the grounds of confiscation and imposition of penalty mentioned therewith and thereafter of a reasonable opportunity be given to such person. In GAJANAN VISHESHWAR BIRJUR VERSUS UNION OF INDIA 1994 (7) TMI 85 - SUPREME COURT the Court was dealing with the validity of confiscation of books imported by the petitioner from People s Republic of China. In the context of the authority to confiscate the Supreme Court observed that an order of confiscation affects fundamental rights of the petitioner to carry on his occupation and business. In METAL FORGINGS VERSUS UNION OF INDIA 2002 (11) TMI 90 - SUPREME COURT in dealing with a case of a demand under Section 11-A of the Central Excise Act, the Court had observed that in the said case show-cause notice as required in law was not issued by the Revenue - While upholding the orders of the Tribunal the Supreme Court has observed that the Tribunal had rightly come to the conclusion that such material could not be treated as show-cause notice, which was inadequately treated as show-cause notice as contemplated under the rules as applicable. It was also observed that issuance of show-cause notice in a particular form is a mandatory requirement of law. There appears no manner of doubt that the impugned orders as assailed in the present proceedings deserve to be quashed set aside - petition disposed off.

Summary

Issues involved:
The primary issue in this case is the violation of the principle of natural justice due to the absence of a show cause notice before passing the impugned orders. Another issue is the confiscation of goods without following the mandatory procedure under Section 124 of the Customs Act 1962.

Violation of Natural Justice:
The petitioners, engaged in the manufacture and sale of Electric Scooters, imported goods which were deemed non-compliant with the Bureau of Indian Standards (BIS). The Customs Officer proceeded to pass an Order-in-Original for confiscation without issuing a show cause notice. The petitioners argued that such an approach was against the principles of natural justice, emphasizing the necessity of a show cause notice, response consideration, and a hearing before passing an order with civil consequences. The Court agreed with the petitioners, highlighting the drastic nature of the order and the requirement for strict adherence to natural justice principles.

Mandatory Show Cause Notice under Section 124:
The Additional Commissioner of Customs passed the impugned order-in-original, exercising powers of confiscation and imposing a penalty without issuing a show cause notice as mandated by Section 124 of the Customs Act 1962. This section requires the issuance of a written notice, an opportunity for representation, and a reasonable opportunity to be heard before confiscating goods or imposing penalties. Citing relevant case law, the Court emphasized the importance of following the statutory requirement of issuing a show cause notice in a specified manner, noting that such notice is a mandatory legal requirement.

Judgment:
In light of the above legal principles, the Court quashed and set aside the impugned orders, emphasizing the necessity of following due process and natural justice. The respondents expressed their intention to issue a show cause notice, and the petitioners were granted the option to apply for provisional release of the goods in accordance with the law. The Court disposed of the writ petitions with no costs, keeping all contentions of the parties open for future proceedings.