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2010 (4) TMI 534 - HC - CustomsSCN - Natural Justice - Whether the Tribunal was justified in invoking the provision of Section 120(2) of the Customs Act 1962 to order confiscation of silver weighing 194.250 Kgs. purchased from M/s. Dilipkumar Hirachand & Sons Jalgaon when the said provisions had not been invoked in the Show Cause Notice and when the applicants were not given any opportunity of being heard in the matter by the Customs Excise & Gold (Control) Appellate Tribunal? Held that - invocation of power u/s 120(2) by Tribunal was not legal/valid in absence of material particular or reasons being disclosed in SCN for entertaining tentative or prima facie view that seized silver purchased from local market was liable to confiscation under that provision. There was non compliance of natural justice as opportunity of being heard not given. Further held that deprivation of valuable property without following due procedure recognized by law is itself substantial prejudice suffered by noticee.
Issues Involved:
1. Legality of invoking Section 120(2) of the Customs Act, 1962 for confiscation of silver. 2. Adequacy of show cause notice and opportunity of being heard. Detailed Analysis: 1. Legality of Invoking Section 120(2) of the Customs Act, 1962 for Confiscation of Silver: Scope of the Question: - The primary question referred to the court was whether the Tribunal was justified in invoking Section 120(2) of the Customs Act to order confiscation of silver when this provision was not invoked in the show cause notice, and the applicants were not given an opportunity to be heard. - The applicants argued that the deletion of specific words in the question expanded its scope to cover the entire quantity of silver (1,913.256 Kgs). However, the court held that the scope remained restricted to the confiscation of 194.250 Kgs of silver. Tribunal's Order: - The Tribunal had confiscated 1,713.807 Kgs of silver under Section 111(d) and 194.250 Kgs of silver under Section 120(2) of the Customs Act. - The Tribunal found it impossible to separate the 194.250 Kgs of silver from the rest, thus invoking Section 120(2) for its confiscation. Court's Consideration: - The court noted that Section 120(2) was never invoked by the adjudicating authority concerning the 194.250 Kgs of silver purchased from M/s. Dilipkumar Hirachand & Sons, Jalgaon. - The Tribunal invoked Section 120(2) for the first time, which was not mentioned in the show cause notice, thus violating the principles of natural justice. - The court concluded that the Tribunal was not justified in invoking Section 120(2) for confiscation in the absence of a show cause notice. 2. Adequacy of Show Cause Notice and Opportunity of Being Heard: Show Cause Notice: - The show cause notice mentioned Section 120 in the context of adding copper to the smuggled silver, converting it into chaurasas, but did not specifically refer to the 194.250 Kgs of silver purchased locally. - The court emphasized that the show cause notice should have included material particulars and reasons for invoking Section 120(2) to allow the applicants to adequately prepare their defense. Principles of Natural Justice: - The court reiterated that natural justice requires that affected parties be given adequate notice and an opportunity to be heard. - The applicants argued that they could have demonstrated the segregation of the locally purchased silver if given the opportunity. - The court held that the absence of a specific show cause notice invoking Section 120(2) deprived the applicants of a fair opportunity to present their case, thus violating natural justice principles. Conclusion: - The court answered the question in favor of the applicants, stating that the Tribunal was not justified in invoking Section 120(2) without proper notice and opportunity for the applicants to be heard. - The reference was answered with no order as to costs.
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