9911796707
TMI Blog2003 (7) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... hin Walled Bearings - All Sizes . By a letter of authority, the petitioner No.1 authorised and permitted the petitioner No.2 to import the goods and to open Letter of Credit and make remittance of foreign exchange against the said license held by the petitioner No.1. On 1.11.1976 the petitioner No.2 filed a Bill of Entry No. 11152 for the import of Thin Walled Bearings (hereinafter referred to as the said goods ) which landed at Palam Airport vide Consignment Note No. 098-07804661 (import rotation No. 76/7392-Flight Air India 106 of 19.10.1976). The said goods were taken delivery of by the petitioner No.2 on 2.11.1976 after payment of the duty on the basis of the declared value. The clearance had been allowed against import license No. T/S/1853921 dated 17.11.1971 in the name of the petitioner No.1. The Bill of Entry for home consumption which was filed by the petitioner No.2 was accordingly assessed, duty was paid and the goods were cleared and taken delivery of by the petitioner No.2. It is alleged that information was received in the Customs House to the effect that the consignment cleared by the petitioner No.2 under the said Bill of Entry had been grossly under-valued and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners' furnishing a bank guarantee of any scheduled bank valid for a period of one year in the first instance subject to its renewal at least fifteen days before the date of expiry for another one year and for its similar renewal from time to time. The Bank Guarantee will be in the sum of ₹ 5,50,000/- to satisfy the claim of the respondents for duty, penalty or other such claims against the petitioner for the said goods. The Bank Guarantee will be to the satisfaction of the Registrar of this Court. The respondents are free to take further steps and proceedings in pursuance of the impugned notice but no final orders shall be passed till the disposal of the writ petition. Thus, from the aforesaid order, it is clear that the goods have already been released however, subject to the petitioner giving a bank guarantee for the sum of ₹ 5.5 lakhs which the petitioners have done. It is also clear that the respondents were free to undertake further steps pursuant to the impugned show cause notice and that only the final orders could not be passed till the disposal of the present writ petition. 5. In the background of the aforesaid facts and circumstances, I now take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods and would, therefore, amount to seizure of the said goods. Moreover, the seizure does not necessarily imply actual taking of possession. Even taking of constructive possession would amount to seizure. When a direction is given to a person that he shall not remove or otherwise part with or dealt with the goods, albeit in his possession, such a direction would amount to a seizure of the goods. In fact, even the proviso to Section 110(1) contemplates this. Section 110(1) and the concerned proviso are set out as under:- 110. Seizure of goods, documents and things. -(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. It is clear that detention of the goods at the owner's premises with the direction that the owner shall not remove, part with or otherwise deal with the said goods except with the previous permission of the proper of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be returned to the person from whose possession they were seized. This would have no effect on the proceedings pursuant to the show cause notice which would continue in terms of the provisions of Section 124 of the said Act. To appreciate the rival contention, it would be appropriate to set out the provisions of Section 124 of the said Act as well as those of Section 110(2) thereof:- 124. Issue of show cause notice before confiscation of goods, etc. -. No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is 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 or imposition of penalty mentioned therein; and c) is given a reasonable opportunity of being heard in the matter; Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly that the said goods which were seized on 3.11.1976 became liable to be returned on the expiry of six months there from as no show cause notice had been issued till then. This, however, does not mean that if a show cause notice was issued after the expiry of the period of six months, it would be bad in law. This is because the show cause notice is issued under Section 124 which does not prescribe any such period of limitation. This is what the Supreme Court also clearly held in the case of Assistant Collector of Customs Vs. Charan Das Malhotra, :- Section 124 provides that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. The Section does not lay down any period within which the notice required by it has to be given. The period laid down in Section 110(2) affects only the seizure of the goods and not the validity of the notice. Furthermore, in the case of Chaganlal Gainmull Vs. Collector of Central Excise and Others, 1990 (Supp) Supreme Court Cases 527, (at page 529, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erintendent (Prevention), Central Excise, Nagpur and another etc, None of these decisions are directly on the point. However, the very question which is being raised by the learned counsel for the petitioner has been answered by the Supreme Court in the case of Union of India and Others Vs. Jain Shudh Vanaspati Ltd., And Another, . In the case before the Supreme Court, the High Court had taken the view that no show cause notice under Section 28 or Section 124 could have been issued unless and until the order under Section 47 had been revised under the provisions of Section 130. In other words, the High Court therein was of the view that an order under Section 47 attained a certain finality and unless altered or modified in an appropriate proceedings, it could not be disturbed particularly by issuance of a show cause notice under Section 124. This is exactly what Mr. Rawal's contention is. This view of the High Court in that decision was negatived by the Supreme Court. The Supreme Court in paragraph 9 of the said decision held as under:- A clearance order under Section 47 obtained by fraudulent means such as this (if it, in fact, be so) cannot debar the issuance of a show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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