9911796707
TMI Blog1977 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... on Brand comphor from one Somchand Sanghvi of 3, Amratolla Street, Calcutta who booked the said goods to the petitioner and the same was kept by the petitioner in the house of his relative, the said Pydisathi Vignesham. On the 12th of November, 1965 the Superintendent of Customs issued a show cause notice calling upon the petitioner to show cause why the comphor would not be confiscated rendering the petitioner liable to penalty under Section 112 of the Customs Act, 1962. A similar notice of show cause was issued on the 23rd of December, 1965 with respect to the cloves. On the 6th of April, 1966 the petitioner replied to the said show cause notices. On 23rd December, 1966 both the goods were confiscated by the Collector of Central Excise and Customs under Section 111(d) of the Customs Act, 1962 and a personal penalty of Rs. 1000/- was imposed upon the petitioner. On the 24th of May, 1971 the petitioner preferred two appeals against those orders of confiscation and imposition of penalty. By an order dated 31st May, 1971 the Member of Central Board of Excise and Customs affirmed the order of confiscation but set aside the personal penalty of Rs. 1000/- imposed upon the petitioner. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers, AIR 1975, Mad. 43. Mr. Sanyal has also relied upon a decision of a single judge of this Court in All India General Transport Corporation v. Collector of Central Excise others 79 CWN 663. 5.In All India General Transport Corporation's case the order of confiscation was not challenged but it was contended that the entire proceeding was illegal and without jurisdiction inasmuch as the show cause notice itself was issued on an extension of time granted under an ex-parte order of the Collector made under the proviso to Section 110 (2) of the Act and the petitioner's appeal before the Central Board of Revenue had wrongly been dismissed for non-fulfilment of an obligation imposed as a result of an ex-parte order refusing the petitioner's prayer for relief under the proviso to Section 129(1) of the Act. In that case Anil Kr. Sen, J. observed that Section 110 is under Chapter XIII which deals with only search seizure and arrest. Sub-section (1) of Section 110 authorises the proper officer to seize any goods which he has reason to believe are liable to confiscation having been imported illegally and in contravention of a prohibition. This is an ancilliary power to the power of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er proceedings taken by the Collector of Customs under Section 124 of the Customs Act was illegal and without jurisdiction. The learned single Judge set aside the order of confiscation of 450 wrist watches and imposition of penalty upon the view that a vested right has been created in favour of the owner of the goods when a show cause notice was not given within six months. On appeal the order of the learned single Judge was set aside by the Division Bench. 8.In Bholanath Karmakar v. Union of India, 1976 CHN 889, the question for determination was, whether the seized gold could be confiscated under Section 79 of the Gold (Control) Act when notice under Section 71 of the Act was not given within the period of six months from the date of the seizure of the gold in view of second of proviso to Section 79 of the Act. Section 79 of the Gold (Control) Act is in terms identical with the provisions of Section 110 read with Section 124 of the Customs Act. 9.It is well settled after the decision of the Supreme Court in Charandas Malhotra's case [1983 (13) E.L.T. 1477 (S.C.) = AIR 1972 SC 689] that Section 110 (2) does not lay down any period within which the notice required by it has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act is that a citizen should not be deprived of his right to property indefinitely upon more reasonable belief of an officer of the Customs that his property might be confiscated under the Act. Accordingly, six months time was fixed by the Legislature to make out a prima facie case for the purpose of confiscation of the goods. If within that period the concerned officer fails to make out a prima facies case in support of his reasonable belief that the goods are liable to confiscation, in that case, the goods shall be returned to the person from whose possession they were seized. 15.The power of confiscation is not restricted only to the seized goods. In Sections 111, 112 and 124 the words "any goods" "any person" are used. These words cannot be given a restricted meaning. Moreover, an order of confiscation rests on the theory of offending goods. Where the goods have been unlawfully imported, these goods become the offender and they might be confiscated without finding out the actual importer. But for the purpose of confiscation of the goods physical existence of the goods are necessary. When seized goods are returned to the owner, in that case, the returned goods lose the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... armakar's case, an appeal was preferred by the Union of India to the Appeal Court. The Division Bench of this Court allowed the appeal and discharged the Rule on another ground, viz that without taking recourse an appeal as provided in the Act, the petitioner's application under Article 226 of the Constitution was not maintainable. My decision, however, has not been set aside by the said Division Bench. 20.With due respect I am unable to share the view of the learned Judges of the Division Bench of the Madras High Court. 21.Now coming to the facts of this case, it appears that no notice under Section 124 was given within six months of the seized goods. The Collector of Customs also did not extend the period after giving the owner of the goods a reasonable opportunity of being heard. Two conditions have been laid down in Section 110 when the seized goods can be retained, (a) When notice under Section 124 is given within a period of six months from the date of the seizure of the goods, (b) When the Collector after hearing the owner of the goods extends the period of six months. Besides these there is no other provision in the Act which empowers the customs to retain the seized go ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
