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TMI Blog2020 (8) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... after the expiry period? - In the absence of Ordinance, there would have been a force in the arguments of learned counsel appearing for the petitioners of non-adherence to the strict provisions of the Act as concededly the communication of extension received by the petitioner is dated 26.05.2020 (Exhibit P-19). Thus, the right of the petitioners has not been prejudiced or taken away in granting extension of six months for completion of proceedings under Section 124 of the 1962 Act - petition dismissed. - WP(C).No. 11154 OF 2020(T) - - - Dated:- 1-7-2020 - Mr. Justice Amit Rawal For the Petitioner : Advs. Sri. T. Asafali, Sri. P. K. Sajeevan For the Respondent : Adv. Shri. P. Vijayakumar, ASG of India JUDGMENT 1. The question of fact and law involved in this matter is that whether in view of proviso to Section 110(2) of the Customs Act, 1962 (hereinafter referred to as the 1962 Act), Principal Commissioner of Customs or Commissioner of Customs is empowered to extend the period for issuance of notice under Section 124 of the 1962 Act to another six months and necessary to afford an opportunity of hearing at the time of extension or not . 2. Following ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an identical representation dated 10.01.2020 (Exhibit P-16). Despite having submitted representations, no action was taken, petitioners approached this Court vide W.P.(C) No.3597 of 2020 for direction to 1st respondent for release of goods to the petitioners. 5. This Court vide order dated 17.02.2020 (Exhibit P-17) directed 2nd respondent to dispose of the representations within one month from the date of receipt of certified copy of the order. Certified copy of the order was submitted before the 2nd respondent on 09.03.2020. Petitioners were heard on 19.03.2020 and accordingly order dated 13.04.2020 (Exhibit P-18) was passed whereby the Assistant Commissioner of Customs rejected the representations, which was communicated to the petitioners on 22.04.2020. On 27.05.2020, a letter, which was signed on 26.05.2020, was received by the 2nd petitioner, intimating regarding extension granted by 2nd respondent from 15.04.2020 as per the provisions of Section 110(2) of 1962 Act. 6. Mr. T.Asaf Ali, learned counsel appearing for the petitioner by referring to the aforementioned acts, raised following legal submissions:- (i) No reason for extension has been shown in the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in S.N. Mukherjee Vs. Union of India AIR 1990 SC 1984. 8. Per contra, Mr. P. Vijyakumar, Assistant Solicitor General of India assisted by Ms. Krishna supports the order Exhibit P-11 extending the period of six months by raising following submissions:- (i) Seizure of the gold was strictly in accordance with law after observing all legal requirements contemplated under Section 110 of the 1962 Act. Ministry of Law and Justice vide gazette notification dated 31.03.2020 (Exhibit R-1(b)) promulgated Ordinance No.2 of 2020 in relaxing certain provisions of specified Act wherein time limit prescribed or notified under the specified Act, which falls during the period from 20.03.2020 to 20.06.2020 or such other date after 29.06.2020, stood extended to 30.06.2020 or such other date after 30.06.2020 as the Central Government may, by notification, specify in this behalf. In fact, the extension was not done on 26.05.2020 but on 11.03.2020 as evidenced from Exhibit R1(a), thus, it does not lie in the mouth of petitioners that the alleged extension was after expiry of six months. The aforementioned extension is strictly in terms of provisions of proviso to Section 110(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the paper book and of the view that there is no substance and merit in the submissions of Mr. T.Asaf Ali the writ petition is liable to be dismissed on account of following reasons:- (i) It would be expedient to extract both the unamended and amended provisions of Section 110(2), which are as under:- 1. Prior Amendment 2. Post Amendment 3. Section 110(2): Where any goods are seized under sub-section (1) and no notice in respect of sub-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 Principal Commissioner of Customs or Commissioner of Customs for a period not exceeding six months. 4. Section 110(2): Where any goods are seized under sub-section (1) and no notice in respect of sub-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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or judicial review. Paras 35 and 36 of the aforesaid judgment are reproduced herein below:- 35.The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii)introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision-making. In this regard a distinction has been drawn betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities, having right to seize the goods, have reason to believe, a show cause notice is required to be issued within six months or within another extended time of six months but if no such notice is issued, authorities are bound to release the seized goods. After extracting the provisions of unamended provisions of Section 110(2) and relying upon the dictum in I.J. Rao s case , it was held that if the notice is not issued in the confiscation proceedings within six months from the date of seizure, the person from whom possession goods were seized, would be entitled to return of the goods. In the ultimate analysis, the High Court of Punjab and Haryana did not accept the arguments raised by revenue of having issued a show cause notice after filing of the writ petition i.e. whereby the period of six months had expired. (v) Except the judgment rendered by the Punjab and Haryana High Court, in pith and substance referred to unamended provisions, all judgments pertain to unamended provisions of Section 110(2), thus, the ratio decidendi culled out in the aforementioned judgment would not apply in the instant case, in view of the amendment caused by Finance Act of 2018. (vi) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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