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TMI Blog2017 (2) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... he consignment was put on hold. Thereafter, the goods were examined and a Panchanama was drawn on 22nd March 2016. A seizure memo was issued on 23rd March 2016. It is the case of the Petitioner that after this process and completion of the investigation the goods ought to have been released provisionally at-least. However, the Petitioner was served with the show cause notice. Though the show cause notice bears the date of 22nd September, 2016, the issue according to the Petitioner is very clear and on facts. The show cause notice was dispatched on 23rd September, 2016 and delivered on 27th September, 2016. 4 It is in these circumstances that Mr Singh, learned counsel appearing for the Petitioner would submit that the goods have to be released unconditionally for the show cause notice has not been given within the prescribed period of six months. Mr. Singh relies upon three provisions of the said Act in that regard. Firstly, our attention is invited to Section 110 of the said Act which provides for seizure of goods, documents and things. Mr Singh relies upon sub-section-2 of Section 110 to submit that if any goods are seized under sub-section (1) and no notice in respect thereof is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1-B) Where any goods, being goods specified under sub-section (1-A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1-B), the Magistrate shall, as soon as may be, allow the application. (2) Where any goods are seized under sub-section (1) and no notice in respect ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal and invalid, no steps can be taken. 8 There is an affidavit in reply to this Writ Petition by the Deputy Commissioner of Customs and in that affidavit it is stated that the assertion in the Writ Petition is incorrect. Factually, the submission that the show cause notice is given beyond the period of six months, is incorrect. It was issued within six months. Relying upon Section 147 of the said Act, it is submitted in this affidavit that the Customs House Agent M/s DV Shipping was competent to receive the show cause notice for and on behalf of the Petitioner. That entity has in fact accepted this notice and reliance is placed on paragraph 7 of the affidavit in reply and Exhibit-4 thereto. In dealing with such an assertion, it is argued in the alternative by Mr.Singh that the Revenue cannot assume that the Customs House Agent has been empowered and is authorized to receive the show cause notice. There is requirement of a specific authorization. That is not produced by the Revenue. The absence of authority, therefore, would indicate that the Revenue cannot rely on the delivery of a copy of this show cause notice or the notice itself on M/s. DV Shipping. Secondly, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the seizure or not, is the sole question. Ordinarily, we would have not interfered with such a factual matter as projected before us and in the event the Petitioner is aggrieved and dissatisfied with the adjudication order, the action proposed to be taken in terms of the show cause notice, while such show notice was adjudicated he could have urged that the show cause notice was not given within the statutory period. In the event that contention or stand of the assessee is not accepted, the assessee could have challenged the findings and order on the show cause notice in further appeal and raised this issue. However, the Petitioner assessee invited this Court to go into the issue because according to him it is not a factual one. According to Mr. Singh, the question is purely legal. 12 We are unable to agree with the submission of Mr. Singh. This is not a matter where we can authoritatively and conclusively say that factual aspects are admitted. In this case the Revenue has brought before us material to show that the show cause notice in writing and containing the grounds on which the goods are proposed to be confiscated or penalty is imposable, has been issued and withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Show Cause Notice was issued on 22-09- 2016 (within six months as provided under section 110 (2) of the said Act). I say that the CHA M/s DV Shipping, representing the Petitioner vide letter dated 22-09-2016 submitted that having been authorized by the Petitioner, he had deputed Mr. Abhishek Dave, Kardex No.D 1844, to receive the Show Cause Notice on his behalf. I say that the Show Cause Notice was collected on 22-09-2016. I say that the Show Cause Notice was displayed on the Notice Board at Nhava Sheva on 22-09-2016. I say that Show Cause Notice dated 22-09-2016 was handed over by NSPU to Dispatch Section on 22-09- 2016 itself which was posted by Speed Post on 23- 09-2016. I say that in view of Section 9 of the General Clauses Act, 1897 the period of six months from the date of seizure i.e. 23-03-2016 would end on 23-09-2016 ( by excluding date of seizure i.e. 23-03- 2016) and since the Show Cause Notice was issued and physically collected by the CHA on 22-09-2016, and posted on 23-09-2016 there is no delay or noncompliance with section 110 (2) of the said Act. I therefore most respectfully submit that this Honourable Court may be pleased to summarily reject the petition. 7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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