1997 Supreme(Del) 1014

High Court Of Delhi
RAJESH ARORA - Appellant
Versus
COLLECTOR OF CUSTOMS - Respondent
Civil 112 of 1996
Decided On : 12/19/1997

Headnote:Customs Act Section 110(2) — Show cause notice — Limitation for — Physical dispossession of goods — Necessity of — Notice issued beyond the period of six months from the date of seizure is illegal.

       Held:

       The respondents are taking the effective date of seizing the vehicle in question as 5th March, 1995 when they prepared the impugnedpanchnama but still left the car in the superdagi of S.P.Bagla. From that date the show cause notice is obviously within six months. But according to the petitioner, he was deprived of the custody of the car in June 1993 and, thereforee, taking that date into consideration, the show cause notice is much beyond six months and the respondents are liable to return the car in question in view of the provisions of section 110(2).

       Seizure involves a deprivation of possession and not merely of custody of goods. What follows from this is that physical deprivation of thecustody or enjoyment of the goods in question is the test for determining whether there was seizure of goods. Whether the goods are kept at place A or place B is not so much material. If the goods are detained against the wishes of a party, that is good enough as a seizure. Moreover, as noted earlier, the respondent could always say in response to the notices of the petitioner that the goods were not seized by them. The stand now being taken by the respondents is by way of taking advantage of their own conduct. The respondents cannot be permitted to do this. From the facts on record it necessarily follows that the show cause notice dated 8th May, 1995 was issued much beyond the period of six months from the date of seizure of the vehicle, as prescribed under Section 110(2) of the Customs Act and for this reason also the respondents are liable to return the car in question to the petitioner.

       Section 111 — Confiscation of goods — Validity of — Clearance of goods on the basis of prevailing public notice — Confiscation on the basis of subsequent public notice issued after the clearance of goods is illegal.

       So far as the aspect of valid customs clearance is concerned, the basic fallacy in the stand of the respondents is their reliance on a notification, i.e., Public Notice No.2021 (PN) 192-97 dated 30th March, 1994. title import in the present case was during the period 1992-93. Rajan Sabharwal returned to India in August 1992. The agreement between the petitioner and Rajan Sabharwal is of 30th October, 1992. Tiie car arrived in India in the middle of 1993 because it was cleared from customs afterpayment of duty and compliance of all other formalities on 5th June, 1993. In these facts I fail to understand how the public notice containing the policy regarding import of cars which came into force on 30th March, 1994 can be made applicable. The public notice which is relevant according to the petitioner is the one which has been quoted in the earlier part of this judgment. The learned counsel appearing for the respondents was unable to refute this. He only kept on harping on the March 1994 public notice without explaining how in the face of the public notice dated 26th June, 1992 quoted hereinbefore, reliance could be placed on a notification which came into operation much later. The petitioner has satisfactorily explained compliance of all the requirements under the Public Notice dated 26th June, 1992. If the respondents rely on a different public notice it is for them to satisfy the court that the public notice of 30th March, 1994 would be applicable. The March 1994 Public Notice is prospective and not retrospective. It follows that the respondents have failed to justify their stand that the import of the car in the present case was not valid or the customs clearance of the car was not valid. If there was nothing wrong in the importation of the car and its customs clearance by the customs authorities, I fail to understand how Section 111 of the Customs Act can be invoked for confiscation of the car. Section 111 applies to confiscation of improperly imported goods. Thegoods in the present case, i.e., the foreign manufactured car was not imported contrary to any prohibition imposed by Customs Act or any other law for time being in force. thereforee, Sub-section (d) of Section 111 is not attracted in the facts of the present case at all. For the same reason Sub-section (o) of Section 111 is not attracted in the facts of the present case. Thus the impugned show cause notice in the present case is on the face of it illegal, untenable and misconceived and is laible to be quashed.