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TMI Blog2021 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to retain the 53 carpets contrary to what has been provided for in sub-section (2) of Section 110. This more particularly as these carpets are retained for forensic purpose and also that the seized goods are already permitted to be provisionally released as per the provisions of Section 110A of the Act - 53 carpets which are retained as samples for forensic purpose are also required to be returned to the petitioners at the end of the extended period. Mr. Jetly would also fairly state that the department is at the final stage of investigation. These petitions would not warrant any further adjudication - Petition disposed off. - WRIT PETITION NO. 5006 OF 2021 WITH INTERIM APPLICATION NO. 2166 OF 2021, WITH WRIT PETITION NO. 5008 OF 2021 WITH INTERIM APPLICATION NO. 2167 OF 2021, WITH WRIT PETITION NO. 5011 OF 2021 WITH INTERIM APPLICATION NO. 2168 OF 2021 - - - Dated:- 22-9-2021 - DIPANKAR DATTA, CJ G. S. KULKARNI, J. Dr. Sujay Kantawala a/w. Mr. Anupam Dighe, Ms. Chandni Tanna with Ms.Shrushti Relekar i/b. India Law Alliance for the petitioners. Mr. Pradeep Jetly, Senior Advocate a/w. Mr. Jitendra B. Mishra for the respondents/UOI. PC :- 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no.2, through their Advocates addressed a communication dated December 11, 2020 to respondent no.2, requesting respondent no.2 to release the petitioners goods under export. Such communication was not responded and hence, these petitions are filed praying for reliefs which are similar in all the petitions. The reliefs interalia are for a direction against the respondents not to withhold any consignment of the petitioners without giving notice to the petitioners and without seeking clarification from the petitioners or his group companies; secondly, for a writ of mandamus to withdraw the written communication dated December 7, 2020 addressed to the CFS, for unconditionally allowing clearance and export of the petitioners goods covered under various shipping bills; to release the gadgets/equipments seized during various searches conducted at the petitioners factory premises and residential premises; to release cash of ₹ 32,00,000/- seized in the search conducted in the residential premises of the petitioners; and for issuance of detention certificate in relation to the petitioners export goods covered under the shipping bills, and for the waiver of demurrage incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. It is also contended that the department has substantial reasons to believe that the petitioners group companies are involved in an attempt to defraud the public exchequer. Hence, the prayers as made in the petitions be rejected. 7. We have heard Dr. Kantawala, learned Counsel for the petitioners and Mr. Jetly, learned Senior Counsel with Mr. Jitendra B. Mishra, Counsel for the respondents. 8. Dr. Kantawala, at the outset would submit that the concern of the petitioners is two fold. Firstly, he submits that despite the seizure of the goods having taken place on December 7, 2020, the respondents have not issued any show cause notice and the status of the petitioners goods is of merely a provisional release. He submits that the petitioners cannot be kept in such suspended animation for such a long period. His contention is that the investigation, if any, ought to have been completed and show cause notice issued to the petitioners. The second concern is in respect of about 53 carpets being retained by the respondents as samples for forensic purposes. It is his submission that such goods could not be retained by the respondents and the same should have been unconditionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dification that sub-section (5) of section 165 of the said Code shall have effect as if for the word Magistrate , wherever it occurs, the words Principal Commissioner of Customs or Commissioner of Customs were substituted. .. .. .. 110. Seizure of goods, documents and things (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: [PROVIDED that where it is not practicable to remove, transport, store or take physical possession of the seized goods for any reason, the proper officer may give custody of the seized goods to the owner of the goods or the beneficial owner or any person holding himself out to be the importer, or any other person from whose custody such goods have been seized, on execution of an undertaking by such person that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: PROVIDED FURTHER that where it is not practicable to seize any such goods, the proper officer may serve an order on the owner of the goods or the beneficial owner or any person holding himself out to be importer, or any other per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person from whose possession they were seized: [PROVIDED that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend such period to a further period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified: PROVIDED FURTHER that where any order for provisional release of the seized goods has been passed under section 110A, the specified period of six months shall not apply.] (3) The proper officer may seize any document or thing which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs. (5) Where the proper officer, during any proceedings under the Act, is of the opinion that for the purposes of protecting the interest of revenue or preventing smuggling, it is necessary so to do, he may, with the approval of the Principal Commissioner of Customs or Commissioner of Customs, by order in writing provisionally attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months. Sub-section (3) speaks about the seizure of documents or things and ordains that the proper officer may seize any document or thing which in his opinion is useful or relevant for any proceedings under the Act. It, therefore, appears to be clear that the legislature intended to carve out some distinction between the seized goods as appearing in sub-sections (1) and (2) and seizure of documents or things as used in sub-section (3). Further Section 124(a) mandates that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is issued a notice in writing informing him of the grounds on which he proposes to confiscate the goods or to impose a penalty. 12. A cumulative reading of Sections 110(1) and (2) read with Section 124(a) brings about a consequence that the proper officer if has reasons to believe that goods are liable to be confiscated, he has power to seize the goods. For such purpose, he is under an obligation to give a notice in respect of such seized goods and if he has not given a notice as provided for in clause (a) of Section 124 within six months of the seizure of the goods, the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 110(2) of the Act. 14. Adverting to the above legal position, in our opinion, 53 carpets which are retained as samples for forensic purpose are also required to be returned to the petitioners at the end of the extended period. Mr. Jetly would also fairly state that the department is at the final stage of investigation. 15. In the above circumstances, in our opinion, these petitions would not warrant any further adjudication. They are disposed of by the following order:- ORDER (I) In respect of the seized goods of the petitioners which are subject matter of a provisional release under Section 110A of the Customs Act, the respondents shall issue show cause notice(s) to the petitioners on or before December 6, 2021 which be adjudicated in accordance with law, as expeditiously as possible. (II) The respondents shall take an appropriate decision in regard to the 53 sample carpets and the seized cash on or before December 6, 2021. (III) All contentions in the adjudication of the show cause notice(s) are expressly kept open. (IV) Needless to observe that in the event show cause notice(s) are not issued as directed, all consequences in law shall follow. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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