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TMI Blog1994 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued by the customs authorities without any number, date or signature. A reply to the draft show cause notice was filed on behalf of the writ petitioners. In reply it was, however, alleged that the draft show cause notice was neither dated nor signed. Without proceeding further on the draft show cause notice or on the reply to the same, submitted on behalf of the writ petitioners, another show cause notice was issued by the authorities on 9th of June, 1994 which was received by the writ petitioners on 24th of June, 1994. It is an admitted position that the aforesaid show cause notice was posted from the Calcutta Airport Post Office on 22nd of June, 1994. It is also an admitted position that 22nd June, 1994 was the last date for giving the notice to show cause in terms of Section 124(a) of the Act. Against refusal on the part of the Customs Authorities to release the goods, to accept the valuation of the goods as declared by the writ petitioners in the Bill of Entry and to issue a detention certificate acceptable to the Calcutta Airport Authority in respect of demurrage and other import charges and expenses incurred in respect of the goods, this writ petition has now been moved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) are liable to confiscation under this Act, he may seize such goods : x x x x x x x Where any goods are seized under sub-section (1) and no(2) 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." From a reading of Section 110(1) of the Act, it is clear to me that it confers power on a proper officer of the Customs office to seize any goods, documents and things if he has reasons to believe that such goods are liable to confiscation under the Act. Therefore, Section 110(1) of the Act confers power to the proper officer to seize goods, documents and things only on his reasonably believing that any goods are liable to confiscation. But it must be borne in mind that such power of the proper officer to seize goods, documents and other things under Section 110(1) of the Act has serious implications, as, such seizure could deprive the importer even if temporarily, the use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the said decision, the Supreme Court observed as follows : "The right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Consequently, such a vested civil right in the respondent cannot be defeated by an ex parte order of extension of time by the Collector. An opportunity to be heard should be available even in a case where extension is granted before expiry of the initial six months, after which period alone the respondent can claim the right to return of the seized goods." 8.From the aforesaid observations of the Supreme Court, it also must be held that in the absence of any show cause notice being given to the importer within the period of six months or within a year, if extended by the Collector of Customs on sufficient cause being shown, from the date of seizure of the goods, the importer is entitled to release the goods as of right, as a civil vested right to get the goods released, is vested on the importer. 9.In view of the aforesaid discussions, the duty to give show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an effective service on the addressee. He further submitted, relying on Section 27 of the General Clauses Act, that service shall be deemed to have been effected by properly addressing, numbering and posting the letter by registered post unless contrary is proved. In support of this contention, Mr. Basu relied on a Single Bench decision of this Court reported in 1982 CWN 270 (Jayantilal Morakhia v. Union of India Ors.). He also relied on a decision of the Madras High Court reported in AIR 1974 Madras 224 (B. Bhoormal Tirupati v. The Additional Collector of Customs House, Madras). 12.I have carefully considered the submission of Mr. Basu which was also contested by the learned Counsel appearing on behalf of the writ petitioner. After carefully considering the submissions, so made on this question, I am however, unable to agree with the submission made by Mr. Basu. 13.Section 153 of the Act has been quoted hereinabove. It is clearly evident from it that it only provides the modes of service. Section 153(a) of the Act says that the service can be effected by tendering the order, decision, summons of notice or sending it by registered post to the person for whom it is intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on before the Supreme Court was that sufficient notice of the Special General Meeting was not given and it was in that context that the Supreme Court held that sending of the notice amounted to giving the notice. The Supreme Court in paragraph 11 of the said decision observed as follows : "Giving" of anything is ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law, however, "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear days." (Emphasis added) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 130 : "We may mention that even apart from the decision of the Supreme Court in Narasimhiah's case, AIR 1966 SC 330 (supra), on a pure grammatical construction of Section 124 of the Customs Act and Section 79 of the Gold (Control) Act, it is clear that what the Legislature contemplates in each of these two cases is that the person concerned has to be given the notice so that he may be informed of the ground on which it is proposed to confiscate the goods or impose the penalty on him and further so that he may be given an opportunity of showing cause against the grounds of such confiscation or penalty. Looking to the object for which the notice is to be given, it is clear apart from authority that the notice must be given, in the sense that the notice must reach the person concerned before the expiry of six months. If that is not done, it cannot be said that the notice has been given to him. Further, it may be pointed out that under the provisions of Section 153 of the Customs Act and 113 of the Gold (Control) Act, it is open to the authorities concerned to tender the notice in question to the person concerned without necessarily sending it by registered post in each and every ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of this fact, the learned counsel, who appeared in that case, relied on Section 153 of the Customs Act and submitted that the show cause notice was sent on the writ petitioners within the period prescribed in Section 110(2) of the Act. In the aforesaid reported decision, admittedly, the record had shown that the show cause notice which was sent by registered post was tendered well within the period of six months from the date of seizure of the goods. That being the position, I do not find any application of the aforesaid Single Bench decision in the facts and circumstances of this case. In the case in hand, admittedly, the show cause notice was issued on the last date and it was tendered to the writ petitioners after the expiry of the period prescribed in Section 110(2) of the Act. That apart, in view of the decision in AIR 1966 SC 330 (K. Narasimhiah v. H.C. Singri Gowda Ors.) in which the interpretation of the word "given" has been found to be the receipt of the show cause notice by the person to whom it was sent, I am unable to follow the aforesaid single bench decision of this Court. 19.Before parting, I also note that the decision of the Madras High Court reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft and was unsigned and undated. From the above, at this stage, in my view, therefore, it would not be open to the customs authorities to rely on such draft show cause notice. Hence I have no hesitation in taking the view that the period of six months from the date of seizure, as mentioned in the Section 110(2) of the Act would be calculated from the date of receiving the fresh notice under Section 124(a) of the Act by the writ petitioners and not from the date the draft notice was received by the writ petitioners. Accordingly, this argument of Mr. Basu, in my view, has no substance and is, therefore, rejected. 22.In view of the aforesaid discussion, I am therefore, of the view that the show cause notice, not having been given within the period of six months, as prescribed in Section 110(2) of the Act, which is mandatory in nature, the writ petitioners are entitled to release of the goods seized by the customs authorities. 23.Now the question would be whether in view of the admitted position that show cause notice was not given within the period of limitation, proceedings initiated under Section 110(1) of the Act for confiscation of the goods should also be quashed. 24.So ..... X X X X Extracts X X X X X X X X Extracts X X X X
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