9911796707
TMI Blog1997 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietor of Om Sakthi Vinayaka Transport, Royapuram, Chennai. He was murdered on 22-1-1997 and after his death the petitioner in the writ petition was looking after the business. On 16-1-1997 a trailor bearing registration No. TMT 5637, which was owned by the husband of the petitioner, was taken on hire by an exporter and the respondents-officers seized the trailor under a mahazar dated 16-1-1997. Since according to the respondents, on 10-1-1997 sandalwood lags from a container No. TRIV 3409802 (Export Cargo) meant for Singapore by vessel M.V. Tiger wave as per shipping bill No. 01253, dated 6-1-1997. 3.After the death of the her husband, the petitioner sent a letter to the first respondent on 12-3-1997 requesting him to return the trailor in order to run her business. She received a reply from the first respondent stating that the trailor cannot be returned at this stage as the investigation is in progress. It is stated in that letter that 11.146 Metric Tons of sandalwood was found from a container from Chennai Harbour and the investigation is pending. It is also stated in that letter that M.M. Sivakumar, Properietor M/s. Changoo Exports, Sri Jaya - a staff of the Company, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the cleaner for investigation. Since he died on 22-1-1997 he could not produce the above said persons. In fact, the petitioner's husband cooperated with the Department by producing the vehicle after coming to know that the Customs Authorities wanted the trailor for the investigation. Thus the husband of the petitioner cooperated with the Department in the matter of investigating the offences said to have been committed by the exporter. According to learned Counsel, no show cause notice was served upon the petitioner. Under Section 110(2) of the Customs Act, 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. Under the proviso six months' time as stated above no sufficient cause being shown may be extended by the Collector of Customs for a period not exceeding six months. This extended period was not made by the Collector so far. Further the show cause notice said to have been sent by the Customs Authority were not served upon the petitioner and other persons. Unless the notices are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved upon the petitioner and others. It was further submitted that it is always upon to the petitioner herein to approach the Customs Authorities for suitable remedy. When the remedy is provided under the Customs Act, before the Authorities concerned, it is not possible for the petitioner to by-pass such a procedure and approach this Court for the remedy. Even if the six months' period is lapsed as contemplated under Section 110 of the Customs Act, it is always open to the Collector for the reasons to be recorded to extend the time for a further period of six months. Under such circumstances it was submitted that it cannot be said that six months time of notice period has been elapsed. For these reasons it was stated that the vehicle could not be released. 7.We have heard both the learned Counsel for the petitioner as well as learned Standing Counsel for the Government of India. 8.The fact remains that the trailor as stated above originally belonged to the husband of the petitioner. On 16-1-1997 the trailor was seized by the Customs Department. The show cause notice was sent to the petitioner and others on 7-7-1997. A perusal of the returned cover would go to show that the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on concerned of the grounds on which it is proposed to confiscate the goods or to impose a penalty and to give him an opportunity to make a representation in writing within such reasonable time as may be specified in the notice and he must be given reasonable opportunity of being heard in the matter. Giving of the notice contemplated by Section 124 of the Customs Act and Section 79 of the Gold Control Act means that the notice must have been received. The giving of the notice is not complete unless and until it reaches the person concerned or its actual tender to him. Merely despatching of the notice to the address of the person does not complete the giving of the notice." In Narasimhiah v. Singri Gowda (AIR 1966 SC 330), the Supreme Court, while considering the provisions of the Mysore Town Municipalities Act, 1951, held that the giving of the notice is not complete unless and until it reaches the person concerned or its actual tender to him. Merely despatch of the notice to the address of the person does not complete the giving of the notice. In AIR 1972 Gujarat 126 (cited supra), it was further held that it is clear apart from the Authority that the notices must be given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds against which he may effectively show causes. Therefore, it is imperative for the authorities under the Act not only to pass an order for the issue of show cause notice but also to cause the notice to be served on the party concerned." In K. Rama Rao v. Additional Collector of Customs, Calcutta and Another [1983 (14) E.L.T. 2267 (Mad.)], the Madras High Court while considering the provisions of Section 153(b) and 134(c) and Section 110(2) of the Customs Act, 1962 held that if the petitioner has denied the service of show cause notice which is alleged to have been sent by registered post to him and the Department has failed to produce any acknowledgment due or postal receipt, it cannot be said that service of notice as required under Section 110(2) of the Customs Act, has been made. If the provisions of Section 153(b) of the Customs Act are restored to it is necessary to show the particulars of display and mere showing of office note in official file is not sufficient. 10.Learned Standing Counsel for the Government of India relied on a decision of the Division Bench of this Court rendered in W.A. No. 791 of 1995 (cited supra). According to the facts arising in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the facts arising in this case wherein it is stated that the trailor was seized on 16-1-1997 and the show cause notices were sent on 7-7-1997, but, they were returned unserved. Considering the judicial pronouncement to cited supra we are of the opinion that when the notices were not actually served upon the petitioner and others and after the return of the notices no further steps were taken to complete the service of the notices by the Customs Department. We are of the opinion that no proceedings were commenced in the present case within six months after the seizure. Therefore, we hold that even though the appellant herein is entitled to the return of the trailor we are not prepared to return the same unconditionally when the confiscation proceedings are pending before the Authorities. The prayer of the petitioner is limited to the extent of releasing the trailor pending disposal of the confiscation proceedings on conditions imposed by this Court. Considering the facts arising in this case and the law on this aspect, we direct the respondents to release the trailor bearing registration No. TMT 5637 to the petitioner subject to the following conditions : (1) The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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