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TMI Blog2025 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... d order is not sustainable.
The impugned order in original dated 13th November 2024 is accordingly set aside. The Respondent is directed to release the gold item of the Petitioner within a period of four weeks - Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2024 signed by the Petitioner, wherein the Petitioner has waived of issuance of the show cause notice and personal hearing. It is admitted position that no show cause notice has been issued to the Petitioner on the basis of the said undertaking. 24. The issuance of a show cause notice before confiscation of goods by the Customs officials is covered under Section 124 of the Act, which reads as under: "124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son cannot be expected to read a printed form, where - * waiver of Show Cause Notice has been agreed to, * waiver of personal hearing has been agreed to and * it has also been recorded that an oral SCN has been received. Such signing of the standard form would not be in compliance with the principles of natural justice, inasmuch as, the waiver under Section 124 of the Act would have to be a conscious wavier and an informed wavier. 15. A perusal of Section 124 of the Act would show that even after an oral show cause notice is given, the authority has the discretion to issue supplementary notice under circumstances which may be prescribed. For ready reference, Section 124 of the Act is set out below:- "124. Issue of show cause notice before confiscation of goods, etc.-No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in [writing with the prior approval of the officer of Customs not below the rank of[an Assistant Commissioner of Customs], informing] him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice was not issued within six months from the date of seizure, the consequence would be that the person from whom the gold was seized would become entitled to its return. Although the aspect of extension of period of detention for another six months vide the Proviso to Section 110 (2) of the Act was introduced w.e.f 29.03.20184 the ratio still holds sway to the effect that issuing of notice to the owner for detention of seized goods is mandatory and the Apex Court frowned upon the fact that no explanation was offered by the Respondents as to why they were constrained to dispose of the seized gold, when it was neither perishable nor hazardous, and there was no answer as to why the gold was disposed of without any notice being" 19. This Court is of the opinion that the printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law. The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say, - (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, up to the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger: Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say, (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, up to the value of fifteen thousand rupees if these are carried on the person or in the accompanied baggage of the passenger: Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.-The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. xxx xxx xxx 5. Jewellery. - A passenger residing abroad for more than one year, on return to India, shall be allowed clearance free of duty in his bona fide baggage of jewellery up to a weight, of twenty grams with a value cap of fifty thousand rupees if brought by a gentleman passenger, or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, as he is ready to pay fine and penalty after taking lenient view as he had brought the gold for his personal use. He submitted that he did not want any show cause notice and personal hearing in the matter." 16. As mentioned above the Petitioner has placed on record the photographs of the Petitioner wearing the gold chain which in fact shows that it is his personal jewellery. 17. Under these circumstances, the present case is clearly covered by the above mentioned judgments. Therefore, considering the fact that - (i) The Respondent Department has failed to provide a Show Cause Notice and a Proper Hearing to the Petitioner; and (ii) The gold chain was clearly personal jewellery of the Petitioner, the impugned order is not sustainable. 18. The impugned order in original dated 13th November 2024 is accordingly set aside. The Respondent is directed to release the gold item of the Petitioner within a period of four weeks. The Petitioner or his authorised signatory shall collect the same. The concerned official/agency shall verify the credentials of the Petitioner and release the same. 19. A copy of the present order be communicated by the Registry to the Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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