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TMI Blog1974 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance against this show cause notice principally on the ground that looking to the value of the silver which is seized it is only the Collector of Customs or a Deputy Collector of Customs who is authorised tinder Section 122(a) of the Act to conduct the proceedings regarding confiscation and penalty and, therefore, the show cause notice, which is contemplated by Section 124 of the Act, ought to have been issued only by the Collector of Customs or the Deputy Collector of Customs authorised to bold the adjudication proceedings, and not by the Assistant Collector of Customs. The petitioner in his petition has raised various other points but none of these points are pressed for the Purpose of this petition with the result that the only point which is indicated above remains to be considered in this petition. 2-3. Short facts leading to this petition are that the petitioner is an agriculturist but claims to be dealing in silver. He is a resident of village Dabhel and claims to have entered into partnership with one Kadirbhai Ismailbhai of village Chikhali for carrying on the business of silver and silver bullion. According to him, document of partnership between the two was exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibited goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land-customs station or a customs port appointed for the loading of such goods, shall be liable to confiscation. It is not in dispute that the silver which is seized was, at the relevant time, a prohibited goods which could not be exported. 7. After the above referred silver was seized on 27th August, 1968, the Assistant Collector of Customs at Surat, issued the above referred show cause notice on 31st January, 1969 under Section 124 of the Act. In response to this show cause notice the petitioner claimed that the seized articles belonged to him and that they were riot liable to confiscation. Before the adjudication proceedings contemplated by Section 122 of the Act could be undertaken, the petitioner has approached this court and has challenged the adjudication proceedings on the ground that show cause notice under Section 124 of the Act has not been issued 'o him by the proper authority. 8. As against this, the respondents do Dot admit that the petitioner is a bona fide merchant dealing in silver or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. We have already made a reference to the provisions of, Clause (c) of Section 113. The next relevant section of this Chapter is Section 122 which is in the following terms: 122. 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 Collector of Customs or a Deputy Collector of Customs; (b) where the value of the goods liable to confiscation does not exceed ten thousand rupees and where the penalty proposed to be imposed does not exceed two thousand rupees, by an Assistant Collector of Customs; (c) where the value of the goods liable to confiscation does not exceed one thousand rupees and where the penalty proposed to be imposed does not exceed two hundred rupees, by a gazetted officer of customs lower in rank than an Assistant Collector of Customs. It is evident from a bare perusal of the provisions contained in this section that adjudication proceedings for confiscation and in position of penalty can be undertaken only by the officers specified in cls. (a), (b) and (c) of the section and that too if the value of the goods which are liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of customs. whose pecuniary jurisdiction to-conduct such proceedings is without any limit. 10. Section 123 which follows Section 122 provides for a rule of evidence inasmuch as it casts the burden of proving that the seized goods are not smuggled goods on the person from whose possession the goods are seized. For the purpose of this petition, we are not concerned with this section., Then follows Section 124 which is in the following terms: 124. 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 reason-able time as may be specified in the notice against the grounds of confiscation or imposition 4 penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter; Provided that the notice referred to in el. (a) and the representation referred to in el. (b) may, at the request of the person concerned be oral. Referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. This section speaks of proper officer which term is defined in Clause (34) of Section 2 of the Act as under: 'Proper officer' in relation to any functions to be performed under this Act. means the officer of customs In this case it is not in dispute that the seizure of the disputed quantity of silver is made by a proper officer . Now if we make a reference to the above quoted provisions of Section 110, it becomes evident that seizure under this section can be made by a proper officer only if he has a reason to believe that the goods are liable to confiscation under the Act. in other words, before proceeding to seize a particular article, the officer concerned must entertain a belief that the said article was liable to confiscation. The belief as regards the liability to confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. These grounds would be best known to the officer who conducts the proceedings of seizure under Section 110 as it is that officer who proposes to confiscate the goods and who, therefore, ultimately seizes the goods under Section 110. Therefore, that officer would be in a better position to know the grounds on which the goods are seized on the footing that they are liable to confiscation. Under the circumstances, it would not be correct to state that proposal to confiscate the goods and to impose penalty should come only from an officer who is authorised to conduct the adjudication proceedings under Section 122 of the Act. Issuance of a show cause notice is a distinct step which is preliminary to the adjudication proceedings which are to follow. The adjudication proceedings are dependant upon the grounds mentioned in the show cause notice, but not vice versa. It is therefore not correct to say that the proceedings for a show cause notice form part and parcel of adjudication proceedings. The scheme of the Act as revealed from Sees. 110, 124 and 122 is that after a proper officer forms a reasonable belief that certain goods are liable to be confiscated, he would seize these goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities who can issue show cause notices under Section 124(a) . 15. Shri Nanavati contended that if this view is taken then much confusion would follow because if the officer who is entitled to hold the adjudication proceedings under Section 122 of the Act is of the opinion that the goods in question should be confiscated on some other grounds, be would be bound by the grounds given by the officer who may be subordinate to him. We are not impressed. In the least by this contention of Shri Nanavati because though it is only the grounds which are conveyed to the person proceeded against, there is nothing in the Act to prohibit the officer conducting the adjudication proceedings to supply fresh grounds to the person proceeded against and to give him an opportunity to show cause against those grounds. As already noted above, Section 124 does not restrict the power to issue a show cause notice to only a particular officer. 16. Before parting with this point it is necessary to note that clauses (b) and (c) of Section 124 contain other facets of the rules of natural justice. Clause (b) contemplates an opportunity of making a representation against the grounds of confiscation and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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