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TMI Blog1978 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 to the petitioner, a copy of which is Annexure 1 to the writ application. The petitioner was also examined by the Customs authority, a copy of which statement has been made Annexure 2 to the writ application, in which he stated that he had purchased the silver from several persons residing around Forbesganj and after melting the same, prepared three Thakas. The Customs authority made the seizure on a suspicion that the silver and the silver coins had been smuggled from Nepal. The Petitioner, however, denied this suggestion made to him. 3.On 9-7-1974, i.e., about two months after the seizure, the petitioner made an application to the Assistant Collector of Customs, Forbesgunj (Respondent No. 1) for releasing and return of the seized articles. No order on the said petition having been passed, he filed the present writ application on 13th of February, 1975 and claimed release of the goods on the ground that no notice as required by Section 110(2) of the Customs Act, 1962 having been given by the authorities within the prescribed period of six months from the date of seizure of the goods, be became entitled to the return of the goods. The other ground taken by him that the silve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above notice within a period of six months, that is a notice to show cause against confiscation. In other words, the scheme of the above provision of the Act lays down that if the authorities do not make up their mind to intiate confiscation proceeding within the prescribed period of six months from the date of the seizure of the goods and call upon the person concerned to show cause, they cannot be permitted to retain the seized goods and the goods are to be returned to the said person. As already said above, the petitioner claim - release of the goods in question on the allegation that the respondents have failed to comply with the above statutory requirement and, therefore, the detention of the goods cannot be permitted and the petitioner was entitled to their release. 6. Section 153 of the Customs Act prescribes the procedure for service of any order, summons or notice issued under the Act and the first mode of service is (a) by tendering the order, summons or notice, etc or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, summons or notice cannot be served in the manner provided in clause (a), by affixing it on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case was invalid and did not meet the requirement of law. Learned counsel appearing for the respondents, however, contended that the value of Rs 13,500/- given by the petitioner was not an admitted valuation, but was only on approximation, and as such the Assistant Collector was still competent to issue the notice. He relied upon para 15 of the Manual of Departmental Instructions on Adjudication issued for the guidance of the Departmental Officers by the Central Board of Revenue. According to the instructions contained in this para "there is no legal objection to the issue of show cause notices by officers other than the adjudicating authority", and any officer not below the rank of the Senior Superintendent of Central Excise has been authorised to issue show cause without any restriction to the value of the goods. Section 152 of the Customs Act in this regard may also be noticed. This section empowers the Central Government to delegate powers by notification in the Official Gazette, and any power exercisable also by a Deputy Collector of Customs or an Assistant Collector of Customs empowered in his behalf by the Central Government. In pursuance of above provision, Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal hearing, but the procedure prescribed by the Rules imposes a duty on the Secretary to hear and the Minister to decide. It was observed by the Supreme Court that this divided responsibility was destructive of the concept of judicial hearing. This decision also has got hardly any bearing as it is still open to the petitioner to challenge the jurisdiction of respondent No. 1, and if satisfied, he may transfer the proceeding to the Collector. Here is not a case where a procedure is already laid down for hearing of the matter by one authority and final decision to be given by another authority. Respondent No. 1 has issued the notice on the footing that it is he who is the competent authority to adjudicate the matter, and if that be so, it will be he who will pass the final order. 11. Reference now be made to the decision in the case of Tarak Nath Sen and Others v. Union of India and Others (AIR 1975 Cal. 337) cited on behalf of the petitioner. In this case a notice to show cause was issued by the Assistant Collector of Customs asking the petitioner of that case to show cause to the Additional Collector of Customs who had admittedly jurisdiction under Section 123 of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statutory requirement of Section 110(2) of the Act. 12 Learned counsel also cited a decision in. Charandas Malhotra v. Assistant Collector of Custom (AIR 1967 Cal. 376). In that case the notice under Section 124 was held to be invalid on the ground that the same was vague and ambiguous and, therefore, failed to give proper opportunity to defend to the appellant. The ratio of this case has no application to the facts of the case in hand. 13. Now what remains for consideration is an unreported Bench decision of this court in Krishna Trading Co. v. The State of Bihar and Other. That was a case under the Bihar Foodgrains Dealers Licensing Order 1967. Notice to show cause was issued to wholesale dealer by Sub-Divisional Magistrate, the licensing authority being the District Magistrate. That notice was quashed by this court on the ground that it was not issued by the licensing authority. Learned counsel for the petitioner contended that proviso to clause of the licensing Order in question did not name the authority who is to issue the notice to show cause, like Section 124 of the Customs Act, and therefore, the ratio of this case should be applied. There is hardly any substance in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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