9911796707
TMI Blog1976 (12) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 22nd June, 1971 and the petitioner submitted his explanation thereto on 23rd July, 1971. The Deputy Collector of Customs, thereupon inquired into the matter and concluded that the seized goods were prohibited articles. So, he passed an order confiscating the articles and also imposed a penalty of Rs. 1,000. This order was, dated 22nd March, 1972. The writ petitioner preferred an appeal to the Collector, Madras, who confirmed, by his order, dated 8th November, 1973, the order of confiscation and imposition of penalty made by the Deputy Collector, thereupon, W.P. No. 2176 of 1974 was filed by the writ petitioner before this Court. The relief he sought therein was to issue a writ of certiorari or mandamus quashing the order of the Deputy Collector, dated 22nd March, 1972 and confirmed by the Collector by his order, dated 8th November, 1973 and to direct the respondents to release the articles seized on 27th June, 1970. The Appellate Collector of Customs and the Deputy Collector of Customs were respondents 1 and 2 in the writ petition. 3. One of the principal contentions urged by the writ petitioner was that the extension of time given by the Collector by his order, dated 16th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. If he has no suspicion that there are no goods liable to confiscation on his person, then there is no occasion or power to make a search. Then, Section 110 deals with seizure of goods, documents and things. We may notice that this is the last section in Chapter XIII. Since it is material provision, we may usefully extract the entirety of ft. This section reads: "110. (1) 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. (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 aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. (3) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn: "124. 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 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 of imposition or penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral." 7. These are the material portions of the Act. Sri Subramanya Reddi, puts forward the theory that the idea of seizure postulated by Section 110 is distinct and different from the power to confiscate or to impose any penalty. Therefore, the procedure laid down under Section 110 is not required to be followed for confiscating any goods or imposing any penalty for which a separate procedure is provided under Section 124. Indeed, so the learned Counsel points o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose possession they were seized. Obviously, this period of six months to give show cause notice before confiscation is provided to enable the concerned officers to make investigation. It should be borne in mind that when the goods are seized, there was only a suspicion or a reason to believe that the goods are liable to be confiscated. They must pursue that suspicion or reasonable impression and make an investigation. Six months period is thus provided to enable them to do that, before they issue notice under Section 124 for confiscation and for imposing penalty. If this notice is not issued within six months, the goods shall be returned to the person from whose possession they were seized. Sub-section (2) of Section 110 brings out the inescapable connection between confiscation and seizure, for, if no notice under Section 124 is given within six months of the seizure, goods shall be returned to the person from whom they were seized. Section 123 which places the burden of proof that the goods are not smuggled on the person from whose possession the goods were seized, is also useful in understanding the connection between seizure and confiscation. 9. It is true that Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right would vest in the person from whom the goods had been seized, if no notice under Section 124 was issued within six months of the seizure, because the goods shall be returned to him immediately after the completion of the six months period if there was no notice. This right is sought to be taken away by an ex parte order made by the Collector without any notice to the affected party, without affording him any opportunity and without holding an inquiry in his presence. It is only with the aid of this extension the authorities concerned issued the delayed notice under Section 124 and thereafter confiscated the goods and imposed penalty. When the order extending the time had been made by the Collector in the back of the affected person and without his knowledge he took away the right that would vest in him under Section 110 (2) and consequently, the extension order, dated 16th December, 1970 passed by the Collector is illegal and invalid. It must necessarily follow that the notice under Section 124 which was given in pursuance of the extension granted by the Collector is invalid. That would result in vitiating the confiscation and penalty proceedings. 11. We receive great supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently the learned Judges opined that is was not open to the respondents (Customs Officials) to proceed with the confiscation or imposition of penalty under the relevant provisions of the Customs Act. To the same effect is a single Judges decision of the Allahabad High Court in Mohd. Hanif v. Collector (6) A.I.R. 1973 All. 433. The learned Judge held that when the extension of the period was invalid, the goods recovered and seized from the possession of the petitioner were liable to be returned to him. 13. We have already noted that Shri Subrahmanya Reddi, relies on a Bench decision of the Madras High Court, a Bench decision of the Gujarat High Court and a single Judge's decision of the Punjab and Haryana High Court in Collector of Customs and Central Excise v. Amruthalakshmi (2 Supra), J.R. Baroolia Mills v. M.L. Khunger (3 Supra) and Muni Lal v. Collector, Central Excise, Chandigarh (4 Supra). With due respect to the learned Judges there, we cannot accept their view that Sections 110 and 124 distinct and different from each other and they have no inter-connection or interplay. Their decisions were rested on this conclusion. For the reasons we have given above, we cannot accept t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
