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TMI Blog2022 (2) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... of KORE KONCEPTS VERSUS DEPUTY COMMISSIONER OF CUSTOMS (SIIB) AND ORS [ 2013 (5) TMI 876 - DELHI HIGH COURT ] where the show cause notice was not issued within stipulated period according to the Court, the seizure order would not sustain and the goods which were released earlier provisionally were held to have been released unconditionally and the Bank Guarantee furnished at the time of provisional release would cease to operate, the same also was required to be returned - Reverting to the facts on hands, M/s. Amira Impex of Maharashtra engaged in the business of various items is alleged to have indulged in gross over valuation and mis-declaration of the export goods with an intent to wrongfully avail IGST refund in various other export related incentives. A search was conducted at the office premise of the proprietor of JBM Textiles Shri Amit Harishankar Doctor and also of Shri Mihir Mahesh Chevli and Shri Aazam Sabuwala at Surat. The statements were recorded of the authorized signatory of about eight firms, which were also operating independently from the same premise - the notice for confiscation and penalty also was given under the Act on 27.11.2020. Admittedly, the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. S S IYER(6553) FOR THE PETITIONER(S) NO. 1 FOR THE RESPONDENT(S) NO. 3,4 DS AFF.NOT FILED (N) FOR THE RESPONDENT(S) NO. 1,2 NOTICE SERVED FOR THE RESPONDENT(S) NO. 1,2 PRIYANK P LODHA(7852) FOR THE RESPONDENT(S) NO. 3,4 JUDGMENT (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. This is a petition preferred under Article 226 of the Constitution of India. 2. Brief facts leading to the present petition are as follow: 2.1 The petitioner is a sole proprietor of JBM Textiles, Surat and is engaged in the business of textile trading and export. The Directorate of Revenue Intelligence ( the DRI hereinafter), Ahmedabad Zonal Unit, Ahmedabad had, on receipt of intelligence, searched the office premise of the petitioner on dated 03.04.2019 where the cash amount of ₹ 35,99,000/- belonging to the petitioner and his family members and two mobile phones also were seized by the officers. Panchnama was drawn on seizure by the officers where the signature of the petitioner was taken on 04.04.2019 which as explained by him, was a forcible act thrust upon him by the respondents. 2.2 The statement of the petitioner was recorded on 04.04.2019, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other writ, order or direction quashing and setting aside the impugned seizure and continued retention of the currency and two mobile phones through panchnama proceedings dated 03.04.2019 for the period beyond the expiry of six months, that is, beyond 03.10.2019 without issue of show cause notice under Section 124 of the Customs Act, 1962 as lacking in jurisdiction, harsh, unfair, illegal, absurd and therefore non-est with consequential relief to the Petitioner as per Prayer B above; D. That this Honourable Court may be pleased to grant ad-interim and interim reliefs in terms of prayer (C) above pending admission, hearing and final disposal of this Special Civil Application. E. For award of the costs of this Petition. F. For such other and further or incidental reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted. 2. We have heard extensively the learned advocate, Mr.S.S.Iyer appearing for the petitioner, who also has taken us through the material which has been placed on record and also the Circular No.07 of 2013 dated 19.03.2013 based on the decision of the Delhi High Court rendered in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he form commission from the third party export in EPCG Scheme and the money returned back by the supplier on paper. As no proper and satisfactory reply was received during the search, the DIR and DGGI officers had detained the cash for further verification. Statements were also recorded under Section 108 of the Customs Act, 1962 ( the Act hereinafter) and the modus operandi has been explained by those present. 4.3 The amount, according to the respondents, which has been claimed by Shri Amit Doctor was the amount of IGST refund, which was fraudulently availed and that needed to be treated as EPCG commission income and was liable to be taxed under the GST Act. Both the income of EPCG commission and IGST refund were received in cash covered under the GST Law. The statements recorded of the petitioner and other are contended to voluntary without adopting any coercive measure. Allegation of force on expiry of 21 months is afterthought on the part of the petitioner. Emphatically further contended that DRI and DGGI are organizational structure of Central Board of Indirect Taxes and Customs. The cash seized is amount of commission and IGST refund wrongly availed. DGGI is claimed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty. 7.4 The mode of service of notice prior to the amendment by Finance Act, 2018 included the summons or notice issued under Section 153 of the Act. This Court (Coram:Justice Anant S. Dave Justice Biren Vaishnav) in case of Deepak Natvarlal Soni vs. Union of India, reported in 2019 (368) ELT 27 (Guj.) was considering the similar issue and addressed this question of issuance of the notice as envisaged under Section 110(2) vis-a-vis Section 124 and Section 153 which is no longer res integra. After a detailed discussion, it had held that the action of respondents-authority in not returning the goods seized upon failure to comply with Sections 110(2), 124 and 153 of the Act, is illegal and the writ petition was allowed by directing the respondents to return all gold ornaments/gold items and two apple IPage phones seized under panchnama to the petitioner within a specified period unconditionally subject to adjudication process to be carried out afresh in accordance with law. 7.5 The relevant paragraphs will be profitably reproduced: 9. Having heard learned counsels appearing for the parties, at the outset, outcome of adjudication proceedings resulting into finality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (b) may at the request of the person concerned be oral. 153. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served,- (a) by tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by the Commissioner of Customs; (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house . 10. It is not in dispute that seizure of goods in question was effected on 11.2.2017 in the arrival hall of terminal No.2 of SVPI Airport, Ahmedabad, in presence of panchas and seizure memo was issued accordingly on the same day. Further, request was made by the petitioners for returning seized ornaments and I phones on 19.8.2017, reminder dated 1.9.2017 wherein reference was made to seizure memo dated 11.2.2017 and various decision of Delhi High Court and also that of Supreme Court which mandated return of seizure goods in case of failure of giving notice within six months from the date of seizure which was over in the facts of the case on 11.8.2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the house of the petitioners in a green colour polythene bag. 12. If the law in this regard is considered in the case of Ambalal Moraraji Soni (supra) this Court by considering provisions of Gold (Control) Act and also that of Section 124 of Customs Act, 1962 refer to decisions of the Apex Court in the case of Narasimhiab v. Singri Gowda, AIR 1966 SC 330 where giving notice was interpreted that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given the giving is not complete. Even the Apex Court also considered concept of reasonable opportunity to be given of being heard and other aspects. Further by referring to Section 110 (2) of Customs Act and Section 79 of the Gold (Control) Act, this court referred to the case of Assistant Collector of Customs v. Charan Das Malhotra AIR 1972 SC 689 in which it was held as under: The right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months ad which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Consequently such a ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the facts of this case submissions made by learned counsel for the petitioner and facts as well as on law remained virtually un-answered and the petitioners were not given notice so envisaged under Section 110 (2) read with Section 124 and Section 153 of the Customs Act, 1962 and the case on hand is covered by the decision to which we have made reference in earlier paragraph and the case of the petitioners is further strengthened that procedure followed by drawing panchnama etc. was of no use and the same cannot be termed as compliance with provisions of the Act, 1962, Even the decision relied on by Mr. Mitesh Amin, learned advocate for the respondents in the case of vs. Ram Kumar Agarwal reported in 2012 (280) ELT 13 (M.P.)submitted that the Bombay High Court simply considered provisions of Section 110 (2), 124, 153 of the Customs Act and in the facts appeared before it, appeal filed by the authority was allowed. In the above case also the court concluded that service of notice will be complete either by tendering or by sending the same by registered post A.D. And such facts cannot be equated with the facts of this case and that of High Court of Karnataka dated 22.4.2015 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er valuation and mis-declaration of the export goods with an intent to wrongfully avail IGST refund in various other export related incentives. 9. A search was conducted at the office premise of the proprietor of JBM Textiles Shri Amit Harishankar Doctor and also of Shri Mihir Mahesh Chevli and Shri Aazam Sabuwala at Surat. The statements were recorded of the authorized signatory of about eight firms, which were also operating independently from the same premise. It also was alleged that the export of the goods were made in the names of five firms out of the eight firms which were called upon to show cause to the Additional/Joint Commissioner of Customs for FOB value of export goods under the provision of Section 14(1) of the Act read with Rule 8 of Customs Valuation (Determination of Value of Export Goods) Rules, 2007 and under Rule 6 of the Customs Valuation (Determination of Value of Export Goods) Rule, 2007. 10. The notice for confiscation and penalty also was given under the Act on 27.11.2020. Admittedly, the search proceedings had been carried out as per the panchnama drawn and placed before this Court on 03.04.2019. The statements have also been recorded on 04.04.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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