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TMI Blog2016 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... d that too unconditional release of the sum was found to be unsustainable. None prevented the authorities from August, 2015 or at least from the date the Petitioner requested to issue the letter or notice calling upon him to remain present and answer the allegations. The statements now made by Mr. Jetly, on instructions, are after a copy of this Petition was served on the Respondents. We are mindful of the seriousness of the allegations and the rampant smuggling of red sanders. However, we are not directing that the immovable properties which are attached shall stand released from attachment. All that we are taking care of is the grievance of the Petitioner that by these coercive measures his business has come to a standstill. He is unable to make payments nor the act of the Respondents enables the workers and staff of the Petitioner and duly employed by him to earn their livelihood. In these circumstances, we continue the freezing and attachment of the immovable properties subject however to a limited liberty to the Petitioner to deal with the said properties in his ordinary and usual course of business. There will be no transfer, alienation or parting with possession thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was engaged in smuggling of red sanders and certain endangerous species of wild flora and fauna, but on production before competent Court, he came to be enlarged on bail on 17th October, 2015. By letters commencing from 19th August, 2015, the second Respondent has restrained the Petitioner from dealing with his immovable properties, more particularly mentioned in para 7 and the communications/letters of 19th August, 2015 and 20th August, 2015, copies of which are at Annexures B to E to the Writ Petition. 5) By another communication Annexure F , the bank accounts of the Petitioner have been frozen. The bank accounts stated to be of the Petitioner and his group companies, details of which are mentioned in the list at Annexure F , stand frozen and attached. 6) The Petitioner addressed two letters on 29th October, 2015 and 8th November, 2015 requesting the Assistant Director of Directorate of Revenue Intelligence to de-freeze the bank accounts and allow to operate the same. There is no response to this request. 7) The Petitioner claims that his legitimate business activities are of distribution of coca-cola at Thane and South Mumbai and distribution of HUL products at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely upon a Division Bench Judgment of this court delivered in the case of Nitin Shirsat vs. union of India reported in 2015 (325) ELT 561 (Bom). He would also rely upon the prior judgment that too of a Division Bench of this Court in the case of Shri Krishna Chaitanya enterprises vs. Union of India reported in 2014 (36) STR 1238 and a Hon ble Supreme Court judgment in the case of Commissioner of Customs, New Delhi vs. Euroasia Global reported in 2009 (236) ELT 627. 13) The relevant sections that Mr. Jetly relies upon are reproduced hereinbelow:- 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. (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods notwithstanding any change in form, etc. (1) Smuggled goods may be confiscated notwithstanding any change in their form. (2) Where smuggled goods are mixed with other goods in such manner that the smuggled goods cannot be separated from such other goods, the whole of the goods shall be liable to confiscation: Provided that where the owner of such goods proves that he had no knowledge or reason to believe that they included any smuggled goods, only such part of the goods the value of which is equal to the value of the smuggled goods shall be liable to confiscation. 121. Confiscation of sale-proceeds of smuggled goods. - Where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale-proceeds thereof shall be liable to confiscation. 122. Adjudication of confiscations and penalties. - In every case under this Chapter in which anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged, - (a) without limit, by a Commissioner of Customs or a Deputy Commissioner of Customs; (b) Where the value of goods liable to confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct from 10th September, 2004. That mandates the adjudicating authority to give an opportunity of being heard to the party in the proceeding, if the party so desires. If that is the adjudication procedure and what we are being informed is that an adjudication of penalty would take place, then, we do not see how without any order being made in pursuance thereof or any sum crystallised or ascertained, the coercive measures initiated and undertaken can continue. The word adjudication means to make a formal judgment on a disputed matter. From 17th August, 2015 and onwards, such freezing and attachment orders have been in force. The Petitioner has been requesting for months thereafter to release his properties or at least his bank accounts so that he can carry on legitimate business activities. We need not express any opinion as to the nature of activities the Petitioner indulges in or whether they are legitimate or not. Even if the Petitioner is alleged to have indulged in smuggling, he has to be proceeded against in accordance with law. If he has to be punished under the Act and criminal proceedings have been launched, which are pending, then, they would take their own course. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the sum of ₹ 1 crore and odd. That sum is therefore inclusive of the amount referred by the Department. There was no show cause notice and no adjudication order and hence, the complaint was that the freezing of bank account is illegal. 19) In para 6, the Division Bench noted the request of the Petitioner and on his own that without prejudice to the rights and contentions and since the business has been completely paralysed, he was ready and willing to give Bank Guarantee. On furnishing such Bank Guarantee, the conditional release of bank account was ordered. There is no principle of law laid down, but in the peculiar facts the Division bench, on the undertaking, released the bank account. 20) As far as Nitin Shirsat's case is concerned, the Division Bench found that the Petitioner therein cannot rely upon absence of adjudication, non application of mind and any outer limit for issuance of show cause notice, so as to obtain release of their bank account. All such contentions were negated in the light of the affidavit filed in reply by the Deputy Commissioner of Customs. In that case, goods liable to confiscation were confiscated on the reasonable belief. Once again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank accounts shall be permitted to be operated. Save and except this limited permission and liberty, we are not inclined to accept all the requests as made in the prayer clauses of the Petition. We are mindful of the fact that in such matters an early adjudication serves the larger interest of public. We direct that within a period of three months from today, the authorities shall issue show cause notice and pass the adjudication order in accordance with law. All contentions in relation thereto are kept open. 23) Final request of Mr. Jetly is that there are 32 bank accounts which have been seized and in which the sum available is ₹ 36 lacs, which may not be sufficient to meet the penalty, which would be adjudged and therefore, while releasing the bank accounts, this Court should impose a condition to furnish Bank Guarantee in favour of the Respondents, at least to the extent of the sum available to his credit. 24) The request of Mr. Jetly is to continue this guarantee and keep it alive for the period within which the show cause notice would be adjudicated and the order to be passed. This request is opposed by Mr. Balani and he submits that having found that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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