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TMI Blog1985 (12) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, the officers who inspected, took the stand that they are finished goods and apprehended that they are kept for clandestine removal from the factory and consequently, they seized 30 drums of semi-finished dyestuff under mahazar dated 11-9-1985. Besides, they also seized number of records belonging to the Petitioner firm as enumerated in the mahazur. The seizure of both the dyestuff and the records is challenged in this writ petition. 3. The principal contention advanced by Mrs. Nalini Chidambaram, learned counsel for the petitioner is that only Section 110 of the Customs Act which is made applicable to the present Act, confers power on the proper officer to make seizure of the goods liable to confiscation under the Act and that before such power can be exercised, the proper officer must have reason to believe that such goods are liable to confiscation. According to the learned counsel, on the records as also corroborated by the averments in the counter-affidavit, the proper officer in the instant case never entertained any such belief and that therefore, the condition precedent to exercise of power of seizure is totally absent and consequently, the seizure is bad in law and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions to the circumstances, namely :- 1. In the said previsions.-(i) references to 'that Act' shall be deemed to be references to 'the Central Excises and Salt Act, 1944 (1 of 1944) and the Central Excise Rules, 1944', (ii) references to 'Assistant Collector of Customs' shall be deemed to be references to 'Assistant Collector of Central Excise', (iii) references to 'Officer of Customs' shall be deemed to be references to 'Central Excise Officers not inferior in rank to a Sub-Inspector', (iv) reference to 'proper officer' shall be deemed to be references to 'proper officer' as defined in Clause (ii) of Rule 2 of the Central Excise Rules, 1944, and (v) references to 'smuggled goods' shall be deemed to be references to 'excisable goods' which have been removed in contravention of any provisions of the Central Excise Rules, 1944. 2. In the proviso to Sub-section (2) of the said Section 110, the reference to 'Collector of Customs' shall be deemed to be a reference to Collector as defined in Clause (ii) of Rule 2 of the Central Excise Rules, 1944. 3. In the said Sub-section (2) of Section 115,-(a) the reference to 'smuggling' shall be deemed to be a reference to removal of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provision authorising seizure. According to the said provision, "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 seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer." (The rest of the provision is omitted as not relevant for the present purpose). I will be referring to this provision with further details in due course. Section 115 and Section 115(2) of the Customs Act deal with confiscation of conveyances. Therefore, this has no relevance to the present case. Section 118(a) of the Customs Act provides, Where any excisable goods in respect of which any of the provisions of the Central Excises and Salt Act, 1944 have been contravened, in a package are liable to confiscation, the package and any other goods imported in that package shall also be liable to confiscation." I must immediately point out here that Section 118(a) of the Customs Act as modified by the Notification alone is referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods. Thus even this provision has no relevance at all. Rule 226 prescribes how entry books, stock account and warehouse registers should be maintained. Rule 202 empowers any officer who is authorised under Rule 200 or Rule 201 to require any person who has the immediate possession, control or use of the land, building, enclosed place, premises, vessel, conveyance or other place which he desires to search under these rules, or of any excisable goods, composition for match-heads or saltpetre for the manufacture of matches, processed, sorted, stored, manufactured or carried thereupon or therein, to open or allow access to inspect or examine such place or conveyance or to open, unload, unpack or allow the inspection or examination of such articles and if such a person should fail to comply with such a requirement, the officer may cause anything to be done which he may deem necessary in order to exercise his powers under these rules in a proper manner and further enables the officer to recover the cost incurred in this behalf. This again has no bearing on the present problem. As regards Rule 49, it refers to duty chargeable only on removal of goods from the factory premises o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds is situate. (I have omitted the other portions as not germane for the present purpose). If that is so, it is the Head of the department who will be the proper officer in whose jurisdiction the land or premises of the producer of any excisable goods is situate. It is not in dispute that there is the Collector of Central Excise and Customs at Madurai. The seizure was within his jurisdiction. If that is so, the proper officer must be the Collector of Central Excise and Customs at Madurai. This will immediately establish that unless the said Collector of Central Excise and Customs (1st respondent herein) entertained any reasonable belief that the excisable goods are liable to confiscation, there can be no valid seizure. 9. I am to reiterate that the source of power for seizure has to be found in Section 110(1) of the Customs Act made applicable by the Notification to this Act with certain modifications referred to above and nowhere else. The reasonable belief on the part of proper officer is sine qua non for the exercise of power of seizure. In this case, that foundation is wholly absent. Then, the seizure is undoubtedly bad in law. 10. The decision reported in Ultramarine Pig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the injury of any person, without having reason to believe that such act is required for the execution of his duty; shall for every such offence, be punishable with fine which may extend to two thousand rupees. Any person wilfully and maliciously giving false information and so causing arrest or search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both." Under Section 22, any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who (a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place shall for every such offence, be punishable with fine which may extend to two thousand rupees. This only shows that the search should be in accordance with Section 110 of the Customs Act made applicable to this Act with suitable modifications stated supra. 12. Rule 9 which is also brought to my notice by the learned counsel for the respondents refers to time and manner of payment of duty. Even this rule therefore will render no help to the respondents. 13. The conditional offer b ..... 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