9911796707
TMI Blog1982 (5) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 respectively) and for a writ or an order in the nature of Mandamus directing the opposite parties to return the gold seized. 2. The petitioner has urged that he is the karta of a large Mitakshara family and is carrying on business as a pawnbroker and is also an agriculturist. In course of the business, he and members of his family owned and possessed gold. On 28-10-1969 the staff of the Central Excise Department searched the business and residential premises of the family and seized, as per the allegation, primary gold, gold coins and gold ornaments. According to the petitioner, the seizure was illegal and unwarranted in law. 3. Mr., R. Mohanty learned counsel for the petitioner has asserted that adjudication proceeding under Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein and, if he so desires, of being heard in the matter; Provided that the notice and the representation referred to in this section may, at the request of the owner or other person connected, be orals Provided further that where no such notice is given within a period of six months from the date of the seizure of the gold, conveyance or animal or such further period as the Collector of Central Excise or of Customs may allow, such gold, conveyance or animal shall be returned after the expiry of that period to the person from whose possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Asst. Collector of Customs and Supdt. Preventive Service Customs, Calcutta v. Charan Das Malhotra Their Lordships of the Supreme Court were called upon to interpret the provisions contained in Section 110(2) and the proviso to the sub-section and Section 124 of the Customs Act, 1962, Similar provisions as contained in Ss. 124 and 110(2) proviso 2 have been made in S. 79 of the Act of 1968. 7. Mr. R. Mohanty, learned counsel for the petitioner, submits that the law laid down by the Supreme Court in the aforesaid case is in all fours having regard to the similar provisions contained in Section 79 of the Act of 1968. He further relies on a Division Bench decision of the Gujarat High Court in Ambalal Morarji Soni v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days' notice would be sufficient. The Legislature did intend that ordinarily the notice as mentioned should be given; it could not have been intended that the fact that the notice Is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting should have the serious result of making the proceedings of the meeting invalid. The object of Section 79 being to apprise the person concerned of the grounds on which it is proposed to confiscate and/or to impose penalty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given ex parte without hearing him, the extension is also bad according to the decision of the Supreme Court in Charan Das's case The stand of the opposite parties In the counter-affidavit is that the notice could not be delivered to the petitioner in time and the averment's made in paragraph 4 relating to non-service of notice within the time prescribed are substantially correct, 9. We do not feel inclined to decide the second question as in our opinion on the first question the petitioner should succeed, namely, that no notice was given as required by Section 79 within the period of six months. The Supreme Court observed (at p. 694):-- The right to restoration of the seized goods is a civil right which accrues on the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Gujarat case were under Section 79 of the Gold (Control) Act, 1968 and Section 110(2) of the Customs Act. 10. In our opinion, no notice having reached the petitioner or having been tendered to him within the period of six months, he earned a civil right of return of the articles seized, 11. The petitioner had raised these questions specifically and pointedly before the appellate and revisional authorities. It is unfair of them to have sidetracked the issue and not recorded findings. 12. On the aforesaid analysis and findings, we allow the writ petition quash Annexures 9, 11 and 12 and direct the opposite parties to return the articles seized. Let a mandamus issue. Hearing fee is assessed at ₹ 200 (Two hundred only), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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