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TMI Blog1994 (11) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ot confiscated under Sections 113(d) and 113(i) of the Act and the levy of penalty under Section 114(i) of the Act should not be made for the various acts, referred to in detail in the show cause notice under challenge. On receipt of the above show cause notice, the petitioner has filed this Writ Petition. 3. It is stated in the affidavit filed in support of the Writ Petition that the petitioner is an Engineering Graduate, originally in the service of the Public Works Department, later resigned the job to join a private organisation as a Project Engineer, and thereafter started his own engineering contract works. In the course of undertaking and executing engineering contract works, he claims to have gained experience to enter into industrial line and he had been issued with the impugned show cause notice involving the petitioner in the alleged offence under the Act. 4. Having regard to the nature and stage of the proceedings before the authorities below, I consider it inappropirate as also not desirable to advert to the various claims made on the merits of the case, except referring to one ground, among other grounds, on which the impugned show cause notice is challenged. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days and that, therefore, the impugned notice is contrary to law and totally without jurisdiction. Reliance is placed by the learned counsel on a decision of the learned single Judge of the Kerala High Court in V. Ramananda v. Collector of Customs - (A.I.R. 1965 Kerala 286). Learned counsel also tried to distinguish the decision reported in Tarak Nath v. Union of India (A.I.R. 1975 Calcutta 337), which is also one of the decisions relied upon by the learned counsel for the respondents. 7. Learned Counsel for the respondents, while reiterating the stand taken in the counter-affidavit, referred to supra, has relied upon the decisions in M.B. Patel v. Kaul (AIR 1976 Gujarat 134) and Tarak Nath v. Union of India (supra) in support of his stand that no infirmity can be attributed to the notice under challenge and that the 2nd respondent cannot be said to be wanting in jurisdiction to issue the said notice. While contending that the grievance of the petitioner proceeds on suppositions and surmises, learned counsel for the respondents would urge that there was no justification to presume that it is the 2nd respondent, who will take up further follow-up action pursuant to the impugned s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the challenge before the learned Judge by means of the writ petition was of the order passed by the Collector of Customs ordering confiscation and imposing a penalty on the petitioner. Among the various grounds of challenge, it is found that the two grounds considered in the Judgment deserve reference. They are : that the show cause notice issued by the Assistant Collector of Customs only stated that the petitioner would appear before him and not before the Collector; and that the Collector of Customs, before he passed the order, did not give any opportunity to the petitioner before the court of being heard and therefore the impugned order was violative of the principles of natural justice. It is in that context the learned single Judge sustained the ground of violation of principles of natural justice on account of the Collector not giving an opportunity to the petitioner of being heard before passing final orders by him and on account of the defective nature of the notice containing a recital calling upon the petitioner to appear before the Assistant Collector of Customs and submit his representations. In my view, the decision will have no relevance or application to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the value of the commodity seized in respect of which adjudication proceedings were initiated, it was contended that it is only the Collector of Customs or the Deputy Collector of Customs, who has the authority under Section 122 of the Act to conduct the proceedings regarding confiscation and levy of penalty and that, therefore, the show cause notice contemplated under Section 124 of the Act ought to have been issued only by the Collector of Customs or Deputy Collector of Customs authorised to hold adjudication proceedings, and not by the Assistant Collector of Customs. Learned Judges of the Division Bench considered the question from all angles and in great detail and depth and held as hereunder : "Shri Nanavati's contention that the requirement of issuing a show cause notice contemplated by Section 124 of the Act is a part and parcel of the proceedings of adjudication contemplated by Section 122 is also not acceptable. The provision as regards show cause notice which is incorporated in Section 124(a) is, as already stated above, in compliance with the rules of natural justice. These rules of natural justice require that the person against whom the proceedings of confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinct and separate from the actual adjudication proceedings under Section 122, such a formality can be undertaken by any officer who is conversant with the facts of the case, and also has authority to take steps under the provisions of the Act. Thus the show cause notice stating grounds of confiscation amounts practically to a charge-sheet submitted by the police relating to an accused who is sought to be tried before a Court of law. Adjudication proceedings which follow pursuant to the show cause notice under Section 124(a) furnish the last step which may result in actual confiscation and penalty. From this analysis of the scheme there emerges nothing to show that the issuance of a show cause notice under Section 124(a) is part and parcel of adjudication proceedings held under Section 122. What Section 122 of the Act does is merely to make a suitable distribution of pecuniary jurisdiction to adjudicate as amongst different ranks of customs officers. Different officers authorised to act under this section may or may not be having first-hand knowledge about the circumstances under which goods are seized under Section 110. They can therefore supply the grounds for confiscation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to necessitate only such authorities with prescribed monetary limits to issue even the show cause notice contemplated under Section 124 of the Act. Section 122 is not the provision conferring power or authority to pass an order of confiscation but merely one identifying the category or officers who can pass such orders. 13. That being the position of law, on the facts and circumstances of the case also, I am of the opinion that the petitioner cannot make any legal grievance even at this stage. The approach of the petitioner to this Court, in my view, is also premature. The 2nd respondent has only called upon the petitioner to submit the explanation to the first respondent, adjudicating authority, in that, the petitioner has to address the explanation to the first respondent only, as noticed in the show cause notice itself. The fact that the petitioner is called upon to file the said explanation addressed to the adjudicating authority with the 2nd respondent does not in any manner alter the position that the petitioner has been called upon to submit his explanation to the adjudicating authority only. From the above, it cannot be contended or surmised that the 2nd respondent a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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