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TMI Blog2019 (5) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... Kenya after selling her car and taking loan from her friends and relatives. As she was exiting the 'Green channel' of the airport terminal, she was intercepted near the exit gate and asked if she was carrying any gold. When she replied in the affirmative, she was taken to the Preventive room where she took out the gold from her bag and gave it to the Customs Department. A panchnama was drawn up for that purpose. When the gold was not returned to her and no show cause notice (SCN) was also issued, she filed the present petition on 3rd April, 2018 impleading the Ministry of Finance (Respondent No.1) and the Commissioner of Customs (Respondent No.2). 3. The panchnama which is enclosed as Annexure P-1 however states that when the Petitioner was asked by the Customs officers whether she was carrying any dutiable goods/gold items which she needed to declare, she answered in the negative. Further in the customs declaration form in Column 9 she had not declared that dutiable goods were being carried by her or that she was carrying gold jewellery. She marked 'no' for the questions at Sr. No. 10 (i) to (ix) of the said form. When the Petitioner was diverted for X-ray of her hand pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Additional Chief Metropolitan Magistrate in February, 2018. It is apparent that there is lack of communication and proper instructions are not being given to the counsel for the respondent- DRI. In these circumstances, we would issue notice to the respondents to file a detailed reply/counter affidavit, which would be filed within four weeks. Rejoinder affidavit, if any, may be filed within four weeks after service of the counter affidavit. We clarify that this order would not mean that the proceedings pursuant to the show cause notice or the criminal proceedings pending have been stayed or interjected. The same would continue in accordance with law. Relist on 6th August, 2018." 7. On 6th August, 2018 further time of four weeks was granted to file counter affidavit. On 10th October, 2018 counter affidavit was permitted to be filed subject to the Respondents depositing Rs. 20,000/- as costs. Again, time was extended for that purpose on 30th November, 2018. The case was adjourned to 11th February, 2019. 8. In between those two dates, on 15th January 2019, an adjudication order was passed by the Commissioner of Customs (Airport and General), confiscating the seized go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed time limit at the available address of the petitioner through diplomatic channel." 13. For the first time the SCN dated 30th June, 2015 was enclosed with the counter affidavit. A copy of the adjudication order in original was also enclosed. Importantly, in the counter affidavit, it was disclosed for the first time in para 20 that as per available records, the case property has been already disposed of in accordance with the provisions of Section 110 (1A), (1B) and (1C) of the Act. No details were given as to when the seized gold was disposed of. 14. On 1st March, 2019 the Petitioner filed CM No. 16718/2019 for an early hearing of the petition. It was pointed out in this application that it was only with the counter affidavit that the above order in original dated 15th January, 2019 was received by the Petitioner and even that order was incomplete as seven pages were missing therefrom. Simultaneously, the Petitioner also filed a rejoinder maintaining that the SCN had not been served on the Petitioner as contemplated under Section 153 read with Section 110 of the Act. It was pointed out the SCN should have been served/received within six months from the date of seizure of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of Home Affairs (MHA) which reads thus: "Sir, Please refer to your letter No. 25012/07/2015- Legal Cell (42) dated 8th July, 2015 forwarding therewith a Show Cause Notice issued under Customs Act, 1962 by Mr. Mohammad Ali, Additional Commissioner, Office of the Commissioner of Customs, T-3, Indira Gandhi International Airport, New Delhi for service upon Ms. Zhinet Banu Nazir Dadany, W/o Mansur Daud, R/o H.No. 167, Ismaily Flats, Nagra Parel Road, Nairobi, Kenya, P.O. Box 11045-011. 2. This Mission had forwarded the Notice to Ministry of Foreign Affairs and International Trade of the Government of Kenya with a request to forward the Court Notice expeditiously to the appropriate authorities to serve on Ms. Zhinet Banu Nazir Dadany and to send a proof of service to this Mission for further submission to the concerned authority in India. Ministry of Foreign Affairs have now conveyed vide their Note No. MFA. LEG 10/42 Vol. VI (76) dated 30th October, 2015 (copy enclosed) that the notice was not effected upon the above named as she no longer resides at the physical address provided. However, they have not send us Affidavit of Service and original unserved Show Cause Notice. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time, determine after following the procedure hereinafter specified." 22. There is no explanation offered by the Respondents as to why they were constrained to dispose of the seized gold, when it was neither perishable nor hazardous. Also, there is no answer why it had to be disposed of without notice being issued to the person from whom it was seized. This is irrespective of whether the SCN was served or not. The CBEC has issued a circular dated 14th February 2006 in this regard where it was impressed upon the field formations as under: "An instance has recently been brought to the notice of the Board where seized goods were disposed of without issuing notice to the owner of the goods. The seizure having been set aside by the adjudicating authority, the owner of the goods sought their return but was advised to obtain the sale proceeds, which were significantly lower than the seizure value. In subsequent proceedings, the High Court has directed the refund of an amount higher than the sale proceeds, as well as payment of interest. The loss to the exchequer has resulted from a failure to comply with the requirements of Section 150 of the Customs Act, 1962. 2. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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