JUDGMENT :

Mohammed Shaffiq, J.

(Prayer: This Writ Appeal is filed under Clause 15 of the Letters Patent praying to allow the above writ appeal by setting aside the impugned order dated 04.03.2021 passed in W.P.No.19977 of 2020.)

1. In this intra Court appeal, the question that arises for consideration is whether the action of the appellant in extending the time limit in exercise of its power under the proviso to Section 110(2) of the Customs Act, 1962 is valid in law.

Brief facts:

i) The respondent carries on the business of export and import and had, in the course of business, imported dry dates from, according to him, Jebel Ali UAE/Dubai, declaring the country of origin as Oman. There was a search on 21.09.2019 by the Customs Officials and several summons issued under Section 108 of the Act. The respondent appeared in response to a few summons but not all. Twenty two (22) containers of dry dates, for which the shelf life is stated to be two years, were seized on the ground that the place of origin was Pakistan and not Oman as contended by the respondent. This is the crux of the dispute between the respondent and the Authorities. The rate of duty for import of dry dates from Pakistan is 200% whereas the rate for import from Oman is only 20%. According to the respondent, there is no mis-declaration or violation of any of the provisions of the Act and no material on the basis of which the imports have been labelled as 'smuggled', as contended by the appellants in their counter filed in W.P.No.19977 of 2020.

ii) The seizure was effected on 06.03.2020, Section 110(1) of the Customs Act, 1962 provide that where any goods are seized under sub-section(1) and no show cause notice in respect thereof is given under clause(a) of Section 124 of the Customs Act, 1962 within six months of the seizure of the goods, such goods shall be returned to the person from whose possession they were seized. The period of six months expired on 05.09.2020, upon expiry of which the respondent is normally entitled to the return of the consignment/seized goods. The proviso to Section 110(2) of the Customs Act, 1962 states that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded by him in writing, extend the period of six months to a further period not exceeding six months, and inform the person from whom such goods were seized of such extension, before the expiry of the period so specified. The impugned intimation in this case was issued on 30.09.2020 extending the period for issuance of show cause notice for a further period of six months invoking the proviso to Section 110(2) of the Customs Act, 1962, and received by the respondent on 07.10.2020.

iii) The seizure was challenged by way of W.P.No.19977 of 2020 inter alia on the premise that the appellant has failed to comply with the timelines prescribed under Section 110(2) of the Customs Act, 1962. Though, the appellants and the respondent have raised certain other grounds, however both have confined their arguments as to whether the intimation of extension dated 30.09.2020 served on the respondent dated 07.11.2020 is within the period prescribed under Section 110(2) of the Customs Act, 1962.

2. It is the case of the respondent that in terms of the proviso to Section 110(2) of the Customs Act, 1962 the extension must be intimated within first 90 days i.e., on or before 05.09.2020 and failure to do so would prove fatal to the validity of the order/proceedings extending beyond the first period of 90 days in exercise of the powers under Section 110(2) of the Customs Act, 1962. Though, the time limit was extended by a further period of 90 days by the appellants vide its order dated 30.09.2020 thereby extending the time upto 05.03.2021, the said intimation of extension having been served on the respondent only on 07.11.2020 i.e., subsequent to 05.09.2020, the entire proceedings is barred by limitation and a nullity.

3. Due to the outbreak of Covid-19 pandemic in March 202