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TMI Blog1984 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Officer searched and seized 6,000 tolas of gold kept in a steel almirah found in the said building. 2. From 22-4-1969 and onwards the gold and other articles seized continued to be in possession of the authorities. But, on 3-10-1969 the Collector of Central Excise, Bangalore (hereinafter referred to as the Collector) made an order under the proviso to sub-section (2) of Section 110 of the Act granting extension. The said order that is material reads thus : "C. No. VIII/10/23/69-Cus. OR/16/69, dated 3-10-1969. ORDER UNDER PROVISO TO SUB-S. (2) TO S. 110 OF CUSTOMS ACT, 1962. Whereas 6,000 tolas of gold in 600 pieces of 10 tolas each bearing foreign markings, was seized from the premises No. 13, V Main Road, 38th Cross, V Block, Jayanagar, Bangalore-11 by Central Excise Headquarters Staff, Bangalore on the midnight of 22-4-1969, and whereas sufficient cause has been shown to me to the effect that the show cause notice in this case cannot be issued within the period of 6 months of the seizure, I in exercise of the powers conferred on me under proviso to subsection (2) to Section 110 of Customs Act, 1962, hereby grant extension of time up to 20-4-1970 for issue of show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proceedings initiated against them and the impugned order made against them under the Act are void in law and non-est. Secondly, they have urged that the show cause notices issued were barred by time and the proceedings initiated against them for confiscation and levy of penalty under the Act are void in law. Alternatively, they have urged that the imposition of personal penalties are based on no evidence. On these grounds, the petitioners have sought for quashing the impugned orders and return of 6,000 . tolas of gold seized on 22-4-1969. 5. In their return, the respondents have not disputed that the order dated 3-10-1969 made by the Collector was without notice to the petitioners and providing them an opportunity of hearing and that the show cause notices were served on them only on 11-6-1970. But still the respondents have justified them, the proceedings initiated and the order made thereon on various grounds to which aspect I will advert at the appropriate stages. 6. Sri J. Jeshtmal, learned Counsel for the petitioners, strenuously contends that the order passed by the Collector on 3-10-1969 (Annexure A) was in contravention of the proviso to Section 110(2) of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Central Excise v. Amrutha-lakshmi, AIR 1976 Mad. 43 : Munilal v. Collector of Central Excise, Chandigarh, AIR 1975 Punj. and Har. 130 and Mohanlal Devdanbhai Choksey v. M.P. Mondakar, AIR 1977 Bom. 320. 12. Chapter XIII deals with searches, seizure and arrest under the Act. S. 110 that occurs in Chapter XIII empowers the seizure of goods and their retention and the orders to be made for such retention. Section 110(2) empowers the proper officer that has seized the goods to retain them in the first instance for a minimum period of six months from the date of such seizure without making an order for the same. If the officer finds it necessary to retain the same for a longer time before the expiry of that time, then he can retain the same for another six months by making a specific order thereto for a sufficient cause and not otherwise. 13. Chapter XIV of the Act deals with confiscation of goods and conveyances and imposition of penalties under the Act. The confiscation empowered by Section 111 occurring in Chap. XIV can be of goods that are seized under Section 110 of the Act and other classes of goods detailed in the former section. The procedure for confiscation and impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this case, it appears that no notice under Section 124 was given within six months of the seized goods. The Collector of Customs also did not extend the period after giving the owner of the goods a reasonable opportunity of being heard. Two conditions have been laid down in Section 110 when the seized goods can be retained; (a) when notice under Section 124 is given within a period of six months from the date of the seizure of the goods; (b) when the Collector after hearing the owner of the goods, extends the period of six months. Besides these there is no other provision in the Act which empowers the customs to retain the seized goods. The provisions of Section 110(2) are mandatory, the goods "shall be returned to the person from whose possession they were seized". 22. Where under the law the goods "shall be returned", in my view, such goods retained unlawfully could not be confiscated under the Act. The goods which must have been returned under the law, were retained by the Customs contravening the mandatory provisions of Section 110(2) of the Act. A statutory authority exercising statutory powers cannot act contrary to law. There could not be any decision in an adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assuming that the same is also correct, cannot be applied to a situation arising under an entirely different enactment. In my view the ratio in Ambalal Morarji Soni's case does not bear on the point and assist Sri Jeshtmal. For all these reasons, I see no merit in this contention of Sri Jeshtmal and I reject the same. 21. Sri Jeshtmal contends that when once it is held that the order dated 3-10-1969 was illegal and void, the petitioners were entitled for the return of the gold notwithstanding any later order made for its confiscation. 22. Sri Bhat contends that the petitioners were not entitled for the return of gold both on facts and law. 23. Before the Collector, the petitioners expressly disclaimed their title to the gold seized on 22-4-1969. All of them have stated that the gold does not belong to them and belongs to one Sri Shyam Sunder of Gujarat State who has not been traced in spite of all efforts by the Department and who has not come forward to claim the same before the authority or before any Court. 24. When the petitioners expressly and deliberately disclaimed their title to the gold seized and pleaded that the same belongs to another person, they cannot on any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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