2017 (3) TMI 704 - HC - Customs

Release of seized gold - smuggling - principles of natural justice - petitioner s case is that no notice has been served upon him within six months of the said seizure. Such notice is mandatory u/s 110 of the CA, 1962, in compliance with Section 124 and in the manner prescribed in Section 153 of the Act - Revenue however, contends that a SCN was issued to the petitioner on 05.02.2016, which was well within the stipulated six months from the date of seizure of the goods; the notice was posted through Speed Post on the same date. Also, a copy of the SCN was also pasted on the Notice Board of the customs house in compliance with Section 153 of the Act; therefore, it would be deemed to be due notice - Held that - not only have the custom authorities failed to provide proof regarding service of notice, but also their counter affidavit is unsupported by any material proof of service - there has been no initiation of any formal enquiry or proceedings by the Customs Authorities after the seizure of the goods on 14.08.2015 - there is no deeming provision of service having been effected under Section 153(a) of the Customs Act, 1962. As stated in para 7 (supra) the records of service by affixing the notice on the notice board of the customs house would arise only in the event that the notice cannot be served in the manner prescribed under the said clause as laid down under Section 153 (a) - Therefore, in terms of the unambiguous language of Section 110(2), in the absence of notice within six months of the seizure of the goods, they would have to be released back to the petitioner - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Seizure of gold by customs authorities on petitioner's arrival in India.
2. Compliance with legal framework regarding the issuance of show cause notice and return of seized goods.
3. Proof of service of notice within the stipulated time period.

Issue 1: Seizure of Gold
The petitioner challenged the seizure of gold by customs authorities upon his arrival at Delhi Airport. The petitioner claimed he intended to declare the gold to customs authorities but was questioned before doing so. The authorities alleged the petitioner crossed the Green Channel before being intercepted. The dispute centered around the petitioner's intent and actions at the airport.

Issue 2: Compliance with Legal Framework
The petitioner sought the release of the seized gold due to the absence of a notice served within six months, as mandated by Section 110 of the Customs Act, 1962. The respondent contended that a show cause notice was issued within the stipulated time frame and posted through Speed Post, complying with Section 153 of the Act. The respondent argued that the petitioner's failure to reply to the notice indicated an intention to smuggle the gold.

Issue 3: Proof of Service of Notice
The court examined the legal provisions related to the service of notice under Sections 124 and 153 of the Customs Act. The respondent failed to provide concrete proof of the notice being sent through Speed Post within the required time frame. The court emphasized the mandatory nature of service through registered post or an approved courier. Without proper evidence of service, the court ruled in favor of the petitioner, ordering the release of the seized gold.

In conclusion, the court allowed the writ petition, directing the customs authorities to release the gold seized from the petitioner. The judgment highlighted the importance of adhering to legal procedures, specifically regarding the timely issuance and proper service of notices in customs cases. The decision underscored the need for concrete evidence to support claims of compliance with statutory requirements, ultimately ensuring justice and fairness in such matters.