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TMI Blog2018 (11) TMI 1696X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 110 of Customs Act, 1962. The operation of section 110(2) of Customs Act, 1962 does not stand in the way of procedure initiated by issue of the show cause notice nor does it concern itself with the issue of a show cause notice at any time thereafter. The letter of the Maharashtra Pollution Control Board dated 12th April 2017 in the show cause notice is surprisingly not referred to in the communication dated 18th April 2017. Though it is stated that the Pollution Control Board has recommended that the goods may be subject to destruction by recycling, the letter of the Maharashtra State Pollution Control Board is not appended as evidence. We are, in consequence, not in a position to comprehend the circumstances in which a recomme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods that had been imported, viz., micro SD cards , were found to be defective and incapable of being loaded with any software and, for that reason, subject to restriction prescribed in Hazardous Waste (Management Handling and Transboundary) Rules, 2008. 4. Learned Authorised Representative placed on record a report of the Principal Commissioner of Customs, Air Cargo Complex to the effect that goods remain uncleared. 5. Learned Counsel for the appellant contests the continuation of the seizure in view of the failure to issue show cause notice within the time specified in section 110(2) of the Customs Act, 1962 and relies upon instruction no. 1/2017-Cus dated 8th February 2017 of Central Board of Excise and Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation of the goods then only would Section 110(2) apply and the respondent would be bound to release the goods. Any other reading of the Section would mean that a person whose goods are seized would seek a provisional release of the goods, get an order of provisional release, allow the authorities to proceed to believe on that basis that such person seeks to release the goods provisionally and on the expiry of the period of six months if notice is not issued under Section 124(a) then contend that the terms for provisional release of the goods are no longer binding as the period of six months has expired and no notice has been served. The period of notice is only when the respondents seek to confiscate the goods. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10(2) of the Act is that the officer of the Customs department may not deprive the right to property for indefinite period to the person from whose possession the goods are seized under sub-section (1) thereof. Sub-section (2) strikes a balance between the Revenue s power of seizure and an individual s right to get the seized goods released by prescribing a limitation period of six months from the date of seizure if no show cause notice within that period has been issued under Section 124(a) for confiscation of the goods. Proviso to Section 110(2) provides for extended period of limitation to validate the detention of the goods for another period of six months on grant of extension by the Commissioner of Customs. Section 110(2) of the Act n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be given. The period laid down in Section 110(2) affects only the seizure of the goods and not the validity of the notice. (Emphasis supplied) 5. The delay beyond six months in the issue of the show cause notice goes to and affects the power to detain the seized goods beyond six months and does not denude the adjudicating authority of the power to initiate proceedings even thereafter. 8. The decision of the Hon ble High Court of Punjab and Haryana has also drawn upon the facts and circumstances in which the Hon ble High Court of Bombay had rendered the decision in re Jayant Hansraj Shah, a decision relied upon by the Learned Authorised Representative. In that case, the provisional assessment had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference had been made to the Maharashtra Pollution Control Board for ascertaining the categorization of memory cards as hazardous waste but, despite reminders, no response was available even till April 2017. The letter of the Maharashtra Pollution Control Board dated 12th April 2017 cited in the show cause notice is surprisingly not referred to in the communication dated 18th April 2017. Though it is stated that the Pollution Control Board has recommended that the goods may be subject to destruction by recycling, the letter of the Maharashtra State Pollution Control Board is not appended as evidence. We are, in consequence, not in a position to comprehend the circumstances in which a recommendation was offered by the Pollution Contro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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