1978 (9) TMI 75 - HC - Customs

Summary

Issues Involved:
1. Legality of the confiscation order.
2. Imposition of personal penalty.
3. Interpretation of the term "silver bullion."
4. Procedural fairness in the extension order.
5. Jurisdiction and authority of the Additional Collector.
6. Availability of alternative remedy and exhaustion of statutory remedies.
7. Return of seized goods and subsequent tax recovery.

Detailed Analysis:

1. Legality of the Confiscation Order:
The petition challenged the legality of an order of confiscation passed by the Additional Collector (Preventive), Central Excise, Bombay. The confiscation was based on the interpretation that the seized silver articles were "silver bullion" as per the Customs Act, 1962, and relevant notifications.

2. Imposition of Personal Penalty:
The Additional Collector imposed a personal penalty of Rs. 50,000/- on each of the original second Petitioner and the third Petitioner under Section 114 of the Customs Act for allegedly contravening provisions of Chapter IVB of the Act.

3. Interpretation of the Term "Silver Bullion":
The core issue was whether the seized articles, which included statues, plates, and kadas, could be classified as "silver bullion." The term "silver bullion" is not defined in the Customs Act or the relevant notifications. The Additional Collector interpreted "silver bullion" based on the Statement of Objects and Reasons of the Amending Act 12 of 1969 and concluded that the seized articles were not genuine and were intended to be used as bullion.

4. Procedural Fairness in the Extension Order:
The Petitioners contended that the extension order under Section 110(2) of the Customs Act was passed without giving them notice or hearing, thereby vitiating the inquiry. However, this point was not pressed during the hearing.

5. Jurisdiction and Authority of the Additional Collector:
The main question was whether the Additional Collector had jurisdiction to order confiscation and levy penalties. It was argued that if the seized articles were not "silver bullion," the Additional Collector would not have the jurisdiction to confiscate them or levy penalties.

6. Availability of Alternative Remedy and Exhaustion of Statutory Remedies:
The Respondents argued that the Petitioners should have exhausted alternative remedies available under the Customs Act, such as filing an appeal. However, the Court held that when fundamental rights are alleged to be violated, the High Court can exercise its jurisdiction under Article 226 of the Constitution, even if alternative remedies exist.

7. Return of Seized Goods and Subsequent Tax Recovery:
The Petitioners sought the return of the seized silver articles, wooden boxes, and account books. The Income Tax Department had issued prohibitory orders and notices of attachment on the seized goods for recovery of tax dues. The Court directed the return of the seized articles to the Petitioners but allowed the Income Tax Department to proceed against them for tax recovery.

Conclusion:
The Court found that the Additional Collector's interpretation of "silver bullion" was unwarranted and unjustified in law. The term should be understood in its popular or trade parlance, which the Additional Collector failed to do. The evidence presented by the Petitioners, including expert testimony, clearly indicated that the seized articles were not considered "silver bullion" in trade. The Court set aside the confiscation order and the penalties imposed, directing the return of the seized articles to the Petitioners while allowing the Income Tax Department to proceed with tax recovery actions.