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1983 Supreme(Mad) 144
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S NAINAR SUNDARAM
K. Rama Rao - Appellant
Versus
Additional Collector of Customs, Calcutta and Another - Respondent
Case No : Writ Petition No. 256 of 1979
Decided On : 04 March 1983
Failure to issue a show cause notice within the time stipulated by the Customs Act, 1962, renders the confiscation of goods illegal.
Headnote:
CUSTOMS ACT - SECTION 124, 110(2), 153(B) - SHOW CAUSE NOTICE - FAILURE TO ISSUE - CONFISCATION OF GOODS - RETURN OF GOODS.
Fact of the Case:
The petitioner's ornamental gold and cash were seized by customs officials on 16-9-1977. The petitioner claimed that he was not served with a show cause notice as required by Section 124 of the Customs Act, 1962, and therefore the goods should be returned to him.
Finding of the Court:
The court found that the respondents failed to provide any evidence that a show cause notice was issued to the petitioner within the time stipulated by the Act. The court also found that the respondents' claim that a show cause notice was displayed in the office notice board as per Section 153(b) of the Act was not credible.
Issues: Whether the petitioner was served with a show cause notice as required by Section 124 of the Customs Act, 1962.
Ratio Decidendi: The court held that the failure of the respondents to issue a show cause notice to the petitioner within the time stipulated by the Act rendered the confiscation of the goods illegal. The court also held that the respondents' claim that a show cause notice was displayed in the office notice board as per Section 153(b) of the Act was not credible.
Final Decision: The court allowed the writ petition and ordered the return of the seized goods to the petitioner.
The writ petition has to be allowed on a short legal ground advanced by the learned Counsel for the petitioner. The matter arises under the Customs Act, 52 of 1962, hereinafter referred to as the Act. Certain facts are not in dispute. On 16-9-1977, the officials of the Customs department intercepted the petitioner when he, along with his employee, was about to leave Calcutta and seized ornamental gold of the weight of 1005.800 grams, valued at Rs. 62, 240, and cash in currency worth Rs. 14, 670. According to the respondents, the seized goods are liable for confiscation under the Act. Section 124 of the Act reads as follows -
"124. No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person -
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and
(c) is given a reasonable opportunity of being heard in the matter:
Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned, be oral.'
Section 110(2) of the Act is relevant and it is extracted as follows -" *
110(2) 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 the whose possession they were seized :
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months.'According to the petitioner, he was not served with any show cause notice, as enjoined by the above provisions and hence, the goods are liable to be returned to him.
2.The respondents have filed a counter affidavit and there it is averred that show cause notices were sent by registered post with acknowledgement due on 9-3-1978 to the petitioner as well as his employee and that while the postal acknowledgement due from the employee has been received, neither the postal acknowledgement due was received from the petitioner nor the notice issued to him was returned unserved. When the matter was heard earlier Mr. K.N. Balasubramaniam, learned Counsel appearing for the respondents, took time to verify as to whether at least the postal receipt for having sent the show cause notice to the petitioner is available amongst the records. Time was granted to the learned Counsel for the respondents to do so. When the matter is taken up today, Mr. T.R.K. Kumar Singh, learned Counsel appearing for the respondents, admits that no such postal receipt is available amongst the records. However, learned Counsel made an attempt to demonstrate that such a show clause notice was, or must have been, in fact, sent. From the files, available with him, he drew my attention to a copy of a letter dated 17-3-1979 stated to have been addressed to the concerned Postal authority enquiring about the fate of the alleged show cause notice issued by the authority concerned.
3.It must be straightway pointed out that the present writ petition was admitted on 25-1-1979 and rule nisi was issued on the same date. It is admitted by the learned Counsel for the respondents that the rule nisi was served on the respondents on 12-2-1979. Already, a contention has been raised in the affidavit filed in support of the petition with regard to the non-issuance of the show cause notice. Hence, even assuming that such a letter dated 17-3-1979 was sent to the said Post authority, it appears to be purely an afterthought and a self serving manoeuvre after the service of the rule nisi, and I am not prepared to attach any significance to it. Further, it is
