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TMI Blog2007 (12) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... er. S/Shri Ramakrishna Reddy for Kalpa Reddy, for the Respondent. [ORDER]. - Challenge is made to a show cause notice issued by the first respondent in F. No. CIU/II-01/06/42 dated 15-1-2007, and also a direction to release the detained goods unconditionally as required under Section 110(2) of the Customs Act 1962, is sought for by the petitioner. 2. The affidavit in support of the petition is perused. The Court heard the learned counsel on either side. 3. The case of the petitioner in short is that they are engaged in the import and trading of Digital Audio and music production equipments. They imported the musical equipments through the Chennai Airport and had cleared it for home consumption after paying the necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the show cause notice which is hit by the provisions under Section 110(2) of the Customs Act 1962, has got to be quashed. Apart from that, beyond that period, the goods could not be retained by the respondents, and it has got to be unconditionally released. Hence, the orders have got to be quashed. Thus, the petitioner has come forward with the writ petition. 4 . The Court heard the learned Counsel for the petitioner who reiterated the averments in the petition. 5 . The learned Counsel for the respondents would submit that an interception was made on 22-5-2006 in respect of the consignment in question; that the representative of the petitioner has admitted that it belonged to the petitioner; that he produced certain documents in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the goods; that the dominion over the goods was lost; that it was within the department; that the detention and seizure are one and the same thing; that the department cannot say that it was a seizure fairly made on 2-8-2006, and the limitation would commence only from that day; but not to be so; and that the period of limitation would commence only from 22-5- 2006 on which date the goods were seized by the department. 7. In answer to the above, it is contended by the respondents' counsel that the detention of the goods by the department is not the seizure as contemplated under Section 110(2) of the Act; that in a given case, when the goods were detained, it was only a restraint made, and calling for the production of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice has been issued after a period of six months from the date of the seizure as one envisaged under Section 110(2) of the Customs Act, 1962, since the goods were taken on 22-5-2006; but, the show cause notice was issued on 15-1-2007 which is after a lapse of six months. The learned Counsel for the petitioner relied on a decision of the Calcutta High court referred to above and would submit that the legislative intent in applying the provision could have been only that once a dominion over the property is lost by the party, and it came to the hands of the department, it has got to be taken as seizure as found under Section 110(2) of the Customs Act, and the Department cannot come forward to say that the custody of the goods was taken on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no stretch of imagination, be considered to be one as seizure understood under Section 110(2) of the Act. Further, assuming for a moment that the representative had produced all the documentary proof in order to establish the ownership of the property, naturally one would expect the Department t return the same. But, such a situation did not arise in this case. An opportunity was given for production of the documentary proof; but, it was not done. 11 . One other circumstance is that a necessity arose for the department to issue a show cause notice initiating proceedings, which is after making a seizure as one contemplated under Section 110(2) of the Act. The "seizure" what is provided under Section 110(2) of the Act, cannot connote the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act cannot be said to be one of detention as put forth by the learned Counsel for the petitioner, in this case, the seizure was made only on 2-8-2006, and the show cause notice was issued on 15-1-2007. As such, it was within the period of six months, time, and hence, it is not hit by that provision. 13. For the reasons stated above, this Court is of the considered opinion that the show cause notice is in order. That apart, it is not a fit case where the goods should be ordered to be returned since the adjudication proceedings are pending before the department. Hence, the writ petition has to necessarily fail. Accordingly, it fails and is dismissed. No costs. Consequently, connected MP is also dismissed. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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