9911796707
TMI Blog2019 (5) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner at all in the present case. The second illegality committed is the disposal of the seized gold without notice having been issued to the Petitioner - 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 - In the present case with the seized material not being perishable, being gold bars, there was no reason for the Respondents to have hurriedly disposed it off and that too without notice to the Petitioner. When it was plain that even the SCN was not served upon the Petitioner, there was no reason to proceed with disposal of the seized gold without notice. As far as the return of the seized gold is concerned, the Court has been presented with a fait accompli, with the Respondents already having hurriedly disposed of the said gold. Mr. Satish Aggarwala on instructions states that the proceeds collected during the auction were equal to the value of the gold being an amount of ₹ 93,34,783 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lumn 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 purse and hand baggage, objectionable dark images were noticed in her purse. She was asked again whether she was carrying any gold items in her baggage. She again replied in the negative. When she was asked to take out the metallic items in her possession and asked to pass through the metal detector, there was no suspicious sound heard. Subsequently, when her hand purse was examined in detail in the Preventive room, two metal blocks kept in a grey and blue colour pouch and further wrapped in transparent cello tape were recovered. The pouches when opened, were found to contain 32 pieces of gold bars, each weighing 10 tolas. They were recovered. 4. During the course of the proceedings, a jewellery Appraiser was called to verify the weight and purity of the metal. In terms of his report, the value of the gold bars found weighing 3732.48 gms was assessed at ₹ 93,34,783/-. 5. The gold bars were seized under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed subject to the Respondents depositing ₹ 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 gold and imposing the penalty of ₹ 18 lacs on the Petitioner under Sections 112 and 114 AA of the Act. 9. Thereafter on the date that the petition was next listed i.e. 11th February, 2019, the Respondents offered to file the counter affidavit during the course of the day. The case was adjourned to 17th May, 2019. In relation to the central point urged in the petition that no show cause notice was ever issued to the Petitioner it was averred in para 4 that an SCN dated 30th June, 2015 was issued. 10. In para 5 of the counter affidavit, it was stated as under: 5. As per record, available in the office of respondent No.2, the Show Cause Notice issued to the petitioner, had been forwarded to the Under Secretary (Legal) IS-Div-11, Ministry of Home Affairs, New Delhi, vide letter No. VIII (AP)10/P I/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 gold. It was also pointed out that no record had been produced by the Respondents to prove that such an SCN had been issued. Even the adjudication order was passed only after the Petitioner approached this Court. In the criminal case instituted in the Court of the Chief Metropolitan Magistrate, Patiala House Court, the Petitioner had attended hearings from 2015 till 2019. Even during that time no SCN was served upon her. In the rejoinder the Petitioner pointed out that the procedure for disposing of the seized gold was not followed and that was illegal. 15. Thereafter when the applications were listed on 9th April, 2019 this Court passed the following order: C.M. Appl. No. 16714/2019, 16718/2019 We have heard learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously 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. We are taking up the matter with them and will be sent to you as and when the same is received. 18. The above letter makers it clear that the Petitioner was not served with the SCN. Counsel for the Petitioner points out that the Petitioner s address continues to remain what is indicated in the SCN. However, they have a system of post office boxes in Kenya and letters are delivered to the post office box. There is no proof of any attempt having been made to serve the SCN to the Petitioner. 19. The record reveals that the seizure of the gold was made on 5th January, 2015. An SCN had to be served within a period of six months thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught 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 impressed upon field formations that where any goods, not being confiscated goods, are to be sold under any provision of the Customs Act, they shall be sold by public auction or by tender or in any other manner after notice to the owner of the goods. 3. It is further clarified that the requirement to issue notice to the owner of the goods shall also obtain in case of goods that have been confiscated but in respect of which all appeal/legal remedies have not been exhausted by the owner of the goods. 23. In the present case with the seized material not being ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
