9911796707
TMI Blog2023 (10) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... declared assessable value of Rs. 26,44,541/-, has been seized. 3. The petitioner invoking the provisions of sub-section (2) of Section 110 read with its proviso, has approached this Court praying that by operation of law the seizure itself has become illegal and consequently the goods are liable to be returned to the petitioner. It is in such context, the petitioner has prayed for the following reliefs: "(a) that this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the impugned seizure memo dated 08.08.2023 issued by the Respondent No. 2 (being EXHIBIT C hereto) and after going into the validity and legality thereof to quash and set aside the same. (b) that this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the impugned extension orders dated 07.02.2023, & 11.05.2023 issued by the Respondent No. 2 respectively (being EXHIBIT F and EXHIBIT H hereto) and after going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the impugned seizure memo dated 8 August 2022 came to be issued, in exercise of the powers under Section 110(1) of the Customs Act. 5. On 12 September 2022, the petitioner approached respondent No. 5 praying for provisional release of the seized goods. However, as there was no response, such request came to be reiterated by the petitioners letter dated 10 October 2022. 6. It appears that although no decision was taken on the petitioner's application for provisional release, invoking the provisions of sub-section 2 of Section 110, the Deputy Collector of Customs issued a communication to the petitioner dated 7 February 2023 inter alia informing the petitioner that the competent authority has extended the time period of three months under Section 110(2) of the Customs Act, for issuance of show-cause-notice in respect of the goods imported by the petitioner under the subject Bill of Entry. Another communication came to be issued to the petitioner on 11 May 2023, whereby a further extension of two months was communicated to the petitioner for issuance of the show-cause-notice. Such extensions have relevance in considering the contentions of the petitioner in the context of what th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. 11. We may observe that although the panchanama in the present case was held on 26 July 2022, the actual seizure of the goods under seizure memo in question had taken place on 8 August 2022. The date of the seizure would have relevance in the context of what Section 110 subsection (2) would provide. It would be appropriate to note the said proviso which reads thus:- "110. Seizure of goods, documents and things (1) .... (2) Where any goods are seized under 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 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.]" (emphasis supplied) 12. Admittedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of six months under the proviso to sub-section (2) if was to be invoked, it would have expired on 11 August 2023. 16. However, as clearly seen from the record, there was no extension for a further period beyond 11 July 2023. Thus, without any further extension a show-cause-notice dated 7 August 2023 came to be issued to the petitioner. Pecularity as noted above, what is seen from the show-cause notice is that in paragraph 18 of the show-cause-notice, it was recorded that "In order to complete the investigation proceedings in the subject case, the Competent Authority on 07.02.2023, 04.05.2023 and 12.07.2023 has granted approval for extension of investigation period for 6 months under Section 110(2) of the Customs Act, 1962."". The further discussion would thrown light on such statement as made in the show cause notice. 17. Mr. Mishra, learned counsel for the revenue has argued before us, that the decision of an extension being granted by the competent authority on 12 July 2023 forms part of the file of the department. He however, states that it was not communicated / informed to the petitioner barring a reference to the same being made in paragraph 18 of the show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to contents of paragraph 2, which reads thus:- "We have to now apply the law as interpreted, to the facts of the case. Admittedly the seizure was conducted on 16-10-2019 and the six months period provided under Section 110(2) expired on 15-5-2020. On 11-3-2020, Annexure-R1(a) was passed by the Commissioner invoking the power under the proviso to Section 110(2). However, we notice with some distress that Annexure-R1(a) order was never communicated to the appellants. The communication issued to the appellants was by Exhibit P19, which is of the Investigating Officer merely informing the extension, again without the reasons being explicitly stated therein. If the order of extension requires reasons to be recorded in writing and information to be given to the person against whom proceedings are taken; such information should necessarily contain the reasons. We would have found Exhibit P19 to be flawed and not in consonance with the proviso to Section 110(2). But, the fact remains that the appellants approached this Court even prior to the expiry of the extended period and the Department produced Annexure-R1(a), dated 11-3-2020 along with their statement. Even now the extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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