2009 (3) TMI 199 - SC - Customs

Seizure of Currency - Misdeclartation of goods - Whether the High Court was justified in ordering unconditional release of the currency which allegedly represented the sale-proceeds of the misdeclared goods, which, if proved, were liable to be confiscated under Section 111 or Section 113 - Held that - prima facie that before adjudication, in exercise of writ jurisdiction on the facts of this case, the High Court ought not to have granted unconditional release of the cash. In fact, we called upon the learned counsel for the respondent to give a bank guarantee. The respondent is not in a position to give a bank guarantee for the amount which he had already withdrawn - Stay granted.

Summary

Issues:
Determining if misdeclaration of description and value constituted smuggling under the Customs Act. Assessing the justification of the High Court's order for the unconditional release of seized currency representing the sale proceeds of misdeclared goods.

Analysis:
The case involved the Department's claim that Shri Sangit Aggarwal and associates were involved in fraudulent import of PVC Cloth through misdeclaration of value and description, leading to customs duty evasion. The intelligence indicated a complex scheme involving invoicing practices with entities in China and Hong Kong, with alleged remittances through hawala operators. Searches at various locations yielded cash, claimed by Aggarwal's wife as sale proceeds of imported goods. The Department seized Rs. 23.90 lakhs under the Customs Act, suspecting it as liable for confiscation.

On the other hand, Aggarwal contested the seizure in a writ petition, arguing that the seized amount represented the sale proceeds of goods cleared after duty payment, making Section 121 inapplicable. The central issue for determination was whether the misdeclaration constituted smuggling under Section 2(39) of the Customs Act. Additionally, the appropriateness of the High Court's order for unconditional release of the currency, potentially subject to confiscation under Sections 111 or 113, was under scrutiny.

The Supreme Court, after considering the provisions of the Customs Act, highlighted the authority to seize currency under Section 110 if believed to be confiscatable goods. The Court emphasized the definitions of "goods" and the procedural aspects of adjudication and show cause notices under Sections 122 and 124. Despite acknowledging the provisional release provision under Section 110A, the Court expressed reservations about the High Court's decision to unconditionally release the cash before adjudication. Noting the respondent's inability to provide a bank guarantee, the Court stayed the High Court's judgment, allowing further proceedings post-adjudication.

In conclusion, the Supreme Court granted leave on the main issues of misdeclaration constituting smuggling and the propriety of releasing the seized currency, emphasizing the need for due process and caution in handling potentially confiscatable items pending adjudication.