Skip to content


VipIn Kumar JaIn Vs. the Collector of Central Excise - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1975CriLJ747
AppellantVipIn Kumar Jain
RespondentThe Collector of Central Excise
Excerpt:
- section 142: [k.ramanna,j] dishonour of cheque complaint by manager of partnership firm maintainability - cheque issued to partnership firm - complaint filed by a person who was neither partner nor authorized by partners to file complaint held, authorisation is necessary. even a person who is looking after entire business affairs of firm cannot file such complaint without authorization. in the absence of authorization, complaint is liable to be dismissed. .....to the petitioner and two other concerned persons calling upon them to show cause as to why the gold seized should not be confiscated with an imposition of personal penalty. the said notice was evidently issued beyond the period of six months from the date of the seizure of the gold, but it was within the period extended by the collector of central excise. on 5-12-1969, that is before the period of six months from the date of seizure, the collector extended the period up to 23-6-1970 for issuing show cause notice to the petitioner. the said order of the collector reads:order under proviso to section 79(ii) of gold (control) act, 1968.whereas 230 gold sovereigns weighing 1,821 grams seized from the possession of sri. vipin kumar jain, son of hazarilal jain, 33, malvia nagar, t. t......
Judgment:
ORDER

K. Jagannatha Shetty, J.

1. A short but an important question arises for decision in this petition under Articles 226 and 227, and that is, whether the Collector of Central Excise, under the proviso to Section 79(ii) of the Gold (Control) Act, 1968 is required to give notice to the concerned person before he extends the period to issue show cause notice against the confiscation of the seized articles.

2. The facts leading to the petition are these:

On 24-6-1969 the Central Excise Authorities searched the petitioner at H. A. L. Airport, Bangalore, and seized 230 gold sovereigns for the contravention of the provisions of the Gold (Control) Act. The seizure was made under the provisions of Section 66 of the Gold (Control) Act since the petitioner did not produce any permit or authorisation for its possession/acquisition. On 11-6-1970 the Collector of Central Excise issued notice to the petitioner and two other concerned persons calling upon them to show cause as to why the gold seized should not be confiscated with an imposition of personal penalty. The said notice was evidently issued beyond the period of six months from the date of the seizure of the gold, but it was within the period extended by the Collector of Central Excise. On 5-12-1969, that is before the period of six months from the date of seizure, the Collector extended the period up to 23-6-1970 for issuing show cause notice to the petitioner. The said order of the Collector reads:

Order under proviso to Section 79(ii) of Gold (Control) Act, 1968.

Whereas 230 gold sovereigns weighing 1,821 grams seized from the possession of Sri. Vipin Kumar Jain, son of Hazarilal Jain, 33, Malvia Nagar, T. T. Nagar, Bhopal-3, by the Central Excise Staff, Bangalore on 24th June, 1969 at H. A. L. Aiiport, Bangalore and whereas sufficient cause has been shown to me to the effect that the show cause notice in this case cannot be issued within the period of six months of the seizure. I, in exercise of the powers conferred on me under proviso to Section 79(ii) of the Gold (Control) Act, 1968, hereby grant extension of time upto 23rd June 1970 for issue of show cause notice, under Section 79(ii) of the Gold (Control) Act, 1968. Sd/- (M.C. DAS)Assistant Collector of CentralCollector (Technical) Excise,Central Excise, Bangalore. Bangalore.

The petitioner resisted the action for confiscation of the gold, inter alia contending that he was entitled to restoration of possession of the seized gold immediately after the expiry of the initial period of six months from the date of its seizure, and the notice issued after the said period was invalid as the Collector extended the period without affording him of any opportunity of being heard. That contention was not accepted by the Collector. He made the order dated 15-1-1973 directing the confiscation of the gold with a penalty of Rs. 5,000/- on the petitioner. The validity of the said order is challenged in this writ petition.

3. Mr. Jeshtmal, learned counsel for the petitioner urged the following two contentions in the alternative.

(1) The power conferred on the Collector of Central Excise under the proviso to Section 79(ii) of the Gold (Control) Act, 1968 is quasi-judicial and therefore the Collector ought to have issued notice to the petitioner before he extended the period for issuing the show cause notice; and

(2) Even assuming that that power is administrative, since the order of the Collector affected the petitioner's rights, the petitioner was entitled to a notice under the rules of natural justice.

4. Both the above contentions are based on the decision of the Supreme Court in Asst. Collector of Customs and Supdt. v. Charan Das Malhotra : 1973ECR1(SC) . In that case the scope of the proviso to subsection (2) of Section 110 of the Customs Act, 1962 was considered. The said proviso also authorised the Collector of Customs to extend the period for issuing show cause notice to the concerned person, before the confiscation of the seized goods. But that extension is required to be made on sufficient cause being shown. The Supreme Court observed :

The words 'sufficient cause beam shown' must mean that the Collector must determine on materials placed before him that they warrant extension of time, and the enquiry to be held by the Collector has to be on facts and not on his subjective satisfaction.

It was also observed that since the Collector has on facts to decide on the existence of a sufficient cause although his decision as. to sufficiency of materials before him may be within his exclusive jurisdiction, it is none the less difficult to apprehend how he can come to his determination unless hi has before him the pros and cons of the question. It was further held that the power under the proviso to Section 110(2) of thu Custom Act, is not to be exercised without an opportunity of being heard given to the person from whom the goods are seized. Counsel for the petitioner submitted that the decision, of the Supreme Court in Charan Das Malhotra's case is on all fours on the question before us. The counsel would be right if the proviso to Section 79(ii) of the Gold (Control) Act, 1968 is identical with the provisions of the proviso to Section 110(2) of the Customs Act. 1962. In order to appreciate the contentions, it is necessary to set out these provisions.

Section 110 (2) of the Customs AU, 1962. provides:

Where any goods are seized under sub-s. (I) and no notice in respect thereof is given under Clause (a) of Section 124 within six months of the seizure of the goods, the goads shall be returned to the person from who.se-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.

Section 79 of the Gold (Control) Act, so far as it is relevant provides:

S. 79. No order of adjudication of confiscation or penalty shall be made unless, the owner of the gold, conveyance, or animal' or other person concerned is given a notice-in writing-

(i)....

(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein, and, if he so desires, of being heard in the matter:Provided further that where no such notice is given within a period of six months from the date of the seizure of the gold, conveyance or animal or such further period' as the Collector of Central Excise or Customs may allow, such gold, conveyance, or animal shall be returned after the expiry of that period to the person from whose possession it was seized.

On comparison of the above provisions,. I find there is a material difference between, the provisions of Section 110(2) of the Customs Act and Section 79(ii) of the Gold (Control) Act. The words 'the period of six months may, on sufficient cause being shown, be extended bv the Collector' which are found in the proviso to Sec-lion 110 (2) of the Customs Act are significantly not found in the proviso to Section 70(ii) of the Gold (Control) Act. The observation of the Supreme Court that the power conferred on the Collector under the proviso to Section 110(2) of the Customs Act could not have been exercised without a notice to the person from whom goods were seized, was based on the above words. ft would be, therefore, difficult to extend the principles stated in Charan Das Malhotra's case : 1973ECR1(SC) to the interpretation of the provisions of Section 79(ii) of the .Gold (Control) Act. In my view, it is not 'obligatory for the Collector to make any judicial determination of the facts, before he extends the period under the proviso to Section 79(ii) of the Gold (Control) Act. Under the said proviso, the Collector could extend the period on his subjective satisfaction without notice to the petitioner and the order made by the Collector on 5-12-1969, is therefore, not open to attack.

5. I shall now turn to the second contention. It was urged for the petitioner that immediately after the period of six months from the date of seizure of the gold, the petitioner got a right to obtain the return of the gold without any enquiry and that right cannot be taken away by the Collector by the unilateral extension of time. Again reliance was placed on some of the observations of the Supreme Court in Charan Das Malhotra's case : 1973ECR1(SC) . Here also I find that the observation of the Supreme Court in the said case is of no assistance to the case of the petitioner. Those observations were based on the specific provisions of Section 110(2) of the Customs Act. Under Section 110(2) of the Customs Act if no notice is given within a period of 6 months from the date of seizure of the goods, a right to get return of the seized goods arises to the concerned person. That right is a civil right and it cannot foe prejudicially affected or taken away by any authority without an opportunity to the person aggrieved. Even an administrative order affecting the Civil rights of a party has to be made in a manner consonant with the rules of natural justice. The rule that a party to whose prejudice the order is intended to be passed, is entitled to a hearing, applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. See State of Orissa v. Dr. (Miss) Binapani Dei : (1967)IILLJ266SC and D. F. O. South Kheri v. Ram Sanehi Singh : AIR1973SC205 .

These principles would have been applicable to the case of the petitioner, if he had a right to obtain return of the seized gold after the period of six months from the date of its seizure. But it seems to me. no such right has accrued to him after the said period of six months. Under Section 79(ii) of the Gold (Control) Act, the right to get back the seized gold arises only when the entire period inclusive of the extended period to issue notice expires. This is very clear by the proviso therein. It reads :

Where no such notice is given within a period of six months from the date of the seizure of the gold....or such further period as the Collector of Central Excise or of Customs may allow, such gold...shall be returned after the expiry of that period to the person from whose possession it was seized.

(Underlining is mine)

The words 'after the expiry of that period' referred to in the said proviso is inclusive of the period if any, extended by the Collector and not after the expiry of the initial period of six months from the date of seizure. Since, in this case, the show cause notice was issued before the expiry of the period extended by the Collector, the petitioner was not entitled to any other notice from the Collector.

In any view of the matter, I do not find any reason to quash the impugned order of confiscation.

6. Before I part with the petition, 1 may refer to one other contention which was urged and subsequently withdrawn by the counsel. He urged that the petitioner was entitled to retain the seized gold without any declaration under Sub-section (5) of Section 16 of the Gold (Control) Act since the seized Gold was evidently less than 2,000 grams which is said in the provision. The said contention was not specifically taken in the present petition and there was therefore no opportunity for the respondents to controvert it. The counsel for the petitioner then sought leave to withdraw the contention as he intends to prefer an appeal against the order of confiscation and imposition of penalty. I therefore express no opinion on the said contention.

7. In the result, the petition fails and is dismissed, but in the circumstances I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //