Skip to content


Muni Lal Vs. the Collector of Central Excise, Chandigarh - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1022 of 1974
Judge
Reported inAIR1975P& H130
ActsCustoms Act, 1962 - Sections 110(1), 110(2), 112 and 124
AppellantMuni Lal
RespondentThe Collector of Central Excise, Chandigarh
Appellant Advocate Sham Lal Watal and; R.C. Dogra, Advs.
Respondent Advocate Kuldip Singh and; R.S. Mongia, Advs.
Cases ReferredCollector v. The
Excerpt:
.....be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. notes, after return of the same to the owner under sub-section (2) of section 110, may or may not be available on recording of adjudication of confiscation ot the same, but a car or any goods like that may be readily available for taking possession thereof after adjudication of confiscation of the same even though the same had to be returned under sub-section (2) of section 110. the provisions contained in subsection (2) of section 110 are similar to the provisions contained in the second proviso to section 79 of the gold control act, 1968, and the provisions contained in section 124 of the act are similar to the other provisions of the said section 79 of the gold control act, 1968...........and personal penalty be not imposed upon them. he (the deputy collector) had also issued another notice on march 22, 1971, to the petitioner and sadhu singh to show cause as to why the gold be not confiscated and personal penalty be not imposed upon them. the petitioner had submitted his replies to the said notices on april 6, 1971. ho (the petitioner) received information from the customs department that the collector had fixed may 19, 1971, as the date of hearing. he appeared on that date and filed written objections before the collector. he further submitted representation by post to the respondent, but he did not receive any response. therefore, in this petition the petitioner impeached the validity of the extension order and of the show cause notices with the allegations that the.....
Judgment:
ORDER

Muni Lal Verma, J.

1. The short tacts of the case, as averred by the petitioner in the writ petition, are as follows:

2. On March 3, 1970, he (the petitioner) travelled in a new grey colour Ambassador car, belonging to his son, from Moga to Amritsar. He had then carried G. C. notes of Rs. 1,74,000/- in an attache case in the car with a view to purchase house at Amritsar. The car was driven by Sadhu Singh. When he reached Adda Harike, Sarvshri Gurdev Singh, Kulwant Singh and Joginder Singh Police Officers slopped the car and wanted to board it for Amritsar. The petitioner did not allow them to do so and this led to exchange of words between them. The aforesaid Police Officers, therefore, searched the car and took the attache case along with the G. C. notes of Rupees 1,74,000/- therein, and also some other money from the person of the petitioner without preparing any inventory. They took the car, the aforesaid G. C. notes, the petitioner and Sadhu Singh to Police Station 'B' Division Amritsar. He was released on bail on March 7, 1970. He then learnt that the recovered G. C. notes were wrongly shown to be of Rs, 1,57,000/-, (hereinafter called the G. C. notes) instead of Rs. 1,74,000/-, and that the Police had planted on him 8 bars of gold weighing 10 tolas each (hereinafter called the gold), 10 kilograms of opium and had also planted an unlicensed pistol on the person of Sadhu Singh. On March 9, 1970, an officer of the Customs Department, Amritsar, moved an application to the Court of Magistrate First Class, Amritsar, for taking over the gold and the G. C. notes. The Magistrate directed the Police Authorities, by his order dated March 21, 1970, to hand over the gold and the G. C. notes to the Customs Department, and the said Department took the gold and G. C. notes from the Police, Amritsar, on March 28, 1970.

Sadhu Singh was prosecuted under Section 25 of the Arms Act, but the said prosecution was withdrawn on March 20, 1971. The petitioner and Sadhu Singh were prosecuted under Section 9 of the Opium Act. The said prosecution was withdrawn as against Sadhu Singh, but permission to withdraw the case as against the petitioner was not allowed by the Court. He (the petitioner) was, however, acquitted In the said opium case on August 2, 1973. The Customs Department did not issue show cause notice for confiscation of the G. C. notes or the gold within the period of six months after the seizure of the same as contemplated by the provisions of law.

The Collector of Customs (hereinafter called the Collector) had, however, on March 19, 1971, passed an ex parte order (Annexure P-3, hereinafter called the extension order), extending the initial period of six months up to March 27, 1971, for issuing show-cause notice. Thereafter, on March 22, 1971, the Deputy Collector Customs issued notice (Annexure 5, hereinafter called the show cause notice) to the petitioner and Sadhu Singh to show cause as to why the G. C. notes be not confiscated and personal penalty be not imposed upon them. He (the Deputy Collector) had also issued another notice on March 22, 1971, to the petitioner and Sadhu Singh to show cause as to why the gold be not confiscated and personal penalty be not imposed upon them. The petitioner had submitted his replies to the said notices on April 6, 1971. Ho (the petitioner) received information from the Customs Department that the Collector had fixed May 19, 1971, as the date of hearing. He appeared on that date and filed written objections before the Collector. He further submitted representation by post to the respondent, but he did not receive any response. Therefore, in this petition the petitioner impeached the validity of the extension order and of the show cause notices with the allegations that the extension order was invalid and ultra vires since the same was passed after expiry of the initial period of six months provided in Sub-section (2) of Section 110 of the Customs Act, 1962 (hereinafter called the Act), and that the show cause notices were time-barred and had been passed without jurisdiction or in excess of jurisdiction. So, he claimed (i) writ of cer-tiorari for quashing the extension order and the show cause notices, (ii) writ of mandamus directing the respondent to pay back the G. C. notes to him, and (iii) writ of prohibition restraining the respondent from continuing the proceedings relating to confiscation of the G. C. notes and the gold and for imposing personal penalty.

3. The written statement was filed by Shri B. K. Seth, Collector of Central Excise and Customs, Chandigarh. The main facts of the case were admitted. It was, however, pleaded that the G. C. notes of Rs. 1,57,000/-and 8 bars of gold, weighing 80 tolas, had been recovered from the petitioner by the Police and that the aforesaid G. C. notes had been obtained by the Customs Department from the Police under orders of the Magistrate on March 28, 1970. It was further pleaded that on appeal against the acquittal of the petitioner, recorded in the opium case by the Magistrate, was admitted by this Court and the same is pending, and that the Income-tax Authorities had served a notice on the respondent, seizing the G. C. notes and other goods and, as such, the same could not be returned to the petitioner. So, all the reliefs claimed by the petitioner were resisted on the ground that the extension order was validly passed and the show cause notices bad been rightly given, andother proceedings relating to adjudication of confiscation of the G. C. notes etc., and for imposition of personal penalty had been legally instituted.

4. The contentions raised by the learned counsel for the petitioner can be formulated as under:

(1) That the extension order was passed without any notice to him and after the expiry of the initial period of six months provided under Sub-section (2) of Section 110 of the Act, and, as such, he had acquired vested right to claim the return of the G. C. notes.

(2) That the show cause notices issued on March 22, 1971, were bad because the same had not been passed within the initial period of six months and the extension of the period, allowed by order dated March 19, 1971, had not been validly granted and, as such, the proceedings relating to adjudication of confiscation of G. C. notes were illegally instituted and could not be allowed to continue.

(3) That the continuation of the said proceedings relating to adjudication of confiscation of the G. C. notes are barred on the principle of issue-estoppel as the petitioner had already been acquitted in the opium case by the competent Court.

5. In order to appreciate the aforesaid contentions raised by the learned counsel for the petitioner, it is necessary to reproduce the provisions contained in Section 124 and relevant provisions of Section 110 of the Act, which read as under:--

'124. Issue of show cause notice before confiscation of goods, etc.-- 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 reasonable opportunity ofbeing heard in the matter:

X X X X

110. Seizure of goods, documents and things.-

(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods:

Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.

(2) Where any goods are seized under Sub-section (1) and no notice in respect there-of 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 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.

(3) x x x x

(4) x x x x'

The language of Sub-section (2) of Section 110 admits of no ambiguity and it prescribes the initial period of six months commencing from the date of seizure of goodsfor the issuance of notice under Clause (a)of Section 124 of the Act. The provisoattached to Sub-section (2) of Section 110, however, provides that the said period of sixmonths can be extended for a period notexceeding six months by the Collector ofCustoms on sufficient cause being shown tohim.

6. The matters, that the initial period of six months, as prescribed by Sub-section (2) of Section 110 of the Act, has to be extended for a period not exceeding six months as contemplated by the proviso thereto, before the expiry of the said initial period, and that the said extension in time cannot be allowed mechanically but has to be allowed after affording due opportunity to the person from whose possession the goods have been seized, stand concluded by the judgment of the Supreme Court in The Assistant Collector of Customs, Calcutta v. Charan Das Malhotra, AIR 1972 SC 689, and the judgment of this Court in Tarsem Kumar v. Collector of Central Excise, Chandigarh, AIR 1972 Punj and Har 444.

It is admitted case or me parties that the G. C. notes and the gold had been obtained by the Customs Department from the Police, Amritsar, on March 28, 1970. Thus, it would mean that the G. C. notes and the gold were seized by the proper officer, having reason to believe that the same were liable to confiscation, on March 28, 1970. The initial period of six months for giving notice, as required by Sub-section (2) of Section 110 of the Act, therefore, expired on September 28, 1970. I think, the date of seizure of the G. C. notes and gold, i.e., March 28, 1970, cannot be counted when the said period of six months has to be reckoned. It is the respondent's case that by order dated September 2, 1970 (Annexure R.1), the Collector extended the initial period of six months up to March 27, 1971, but the said order dated September 2, 1970, passed by the Collector, suffered from the infirmity that no notice was given and no opportunity had been furnished to the petitioner while granting the extension of time. Therefore, it is the respondent's case that the Collector had issued notice on March 9, 1971, to the petitioner and Sadhu Singh to show cause as to why the initial period of six months be not extended up to March 27, 1971, and it was then on March 19, 1971, that the Collector passed the order (Annexure P.3) extending the initial period of six months up to March 27, 1971, and the said order contained specifically that the order passed by the Collector on September 2, 1970, had been superseded. Since the order dated September 2, 1970 (Annexure R.1) had been passed by the Collector without giving any notice or affording opportunity to the petitioner, it could not, in view of the judgment of the Supreme Court in Charan Das Malhotra's case (supra), and the judgment of this Court in Tarsem Kumar's case (supra), be recognised as valid for extending the initial period of six months. Further, the said order was superseded by the order passed by the Collector on March 19, 1971. That means that the order dated September 2, 1970, extending the initial period of six months up to March 27, 1971, does not exist. The order passed by the Collector on March 19, 1971. extending the aforesaid period of six months up to March 27, 1971, is not valid for the obvious reason that it had been passed by him after the expiry of the initia) period of six months. Therefore, there is no escape from the conclusion that on account of expiry of the initial period of six months provided in Sub-section (2) of Section 110 and the same having not been validly extended, a vested right had accrued to the petitioner to claim the return of the G. C. notes, which had been seized from his possession. It may be noted that the petitioner does not admit that the gold had been taken from his possession and he does not claim the return of the same. So, the first contention of the learned counsel for the petitioner is well-founded.

7. Shri Kuldip Singh, learned counsel for the respondent, argued that a notice under Section 132 of the Income-tax 'Act, seizing the G. C. notes and the gold under Clause (iii) of the said section, had been served upon the respondent and, as such, he cannot return the G. C. notes to the petitioner. Under the provisions of Sub-section (2) of Section 110 of the Act, a vested right had accrued to the petitioner to claim the return of the G. C. notes, because no notice, as required by Clause (a) of Section 124 of the Act, had been given to him (the petitioner) within the prescribed period. True, notice under Section 132 of the Income-tax Act had been served upon the respondent the effect of which may be that the G. C. notes would be deemed to have been seized by the Income-tax Authorities. But then the respondent cannot withhold the G. C. notes. He should not stand between the exercise of the right of the petitioner to claim the return of the G. C. notes and seizure of the same by the Income-tax Authorities. So, the proper course with the respondent is that he should return the G. C. notes to the petitioner, from whose possession the same had been taken, after due notice to the Income-tax Authorities, and leave it for the said Authorities to take away the G. C. notes on account of the seizure of the same subject to the right of the petitioner.

8. I must confess that the point raised by the learned counsel for the petitioner that show cause notices were bad for the reason that the same were not issued within the initial period of six months and the said period had not been validly extended, as required by Sub-section (2) and proviso thereto of Section 110 of the Act, is not free from doubt and had been of sufficient difficulty for decision. Section 110 of the Act enacts provision relating to the seizure of goods, while Section 124 of the Act makes provision for issue of show cause notice for confiscation of goods. Seizure of goods and confiscation of the same are distinct and different matters. 'Seizure' would mean taking possession even forcibly by virtue of authority under law. The ordinary rule is that no goods or property of any citizen can be seized and he cannot be deprived of its user. In departure of the said rule, Section 110 of the Act authorises the Customs Officers, when they have reason to believe that any goods are liable to confiscation, to seize the same. When Sub-section (1) of Section 110 has given to them the special right to seize such goods, its subsection (2) places a corresponding obligation on them that in the event of seizure of goods, they are bound to proceed for adjudication of confiscation of the goods at an early date, In order to see that the Customs Officers should not retain such goods after seizure of the same and deprive the owners of their user, Sub-section (2) of Section 110 of the Act requires that a notice, as required under Clause (a) of Section 124 of the Act, should be given to the person from whom goods had been seized, within a period of six months, and if such notice is not so given to him, the goods must be returned to him. The word 'return' would mean to pass back or to release the same from seizure. But it would not tantamount to cesser of the liability of the goods from confiscation under the provisions of the Act. Therefore, Sub-section (2) of Section 110 of the Act, in my opinion, makes provision for curtailment of the period during which the seized goods can be retained for issuance of notice under Clause (a) of Section 124. Once the snid notice is issued within the period prescribed by Sub-section (2) only proviso thereto, of Section 110, the goods seized can be retained till the adjudication of the confiscation proceedings. So, the faliure on the part of the Customs officers to issue notice within the period contemplated by Sub-section (2) or proviso thereto, of Section 110, would certainly clothe the person, from whom the goods have been seized, with the right to claim the return of the same, but it does not, in my opinion, set at naught the provisions of Section 124 and will not deprive the Customs Officers to issue show cause notice under Section 124, for the obvious reason that it (Section 124) docs not prescribe any time limit for issuance of such a notice. All that it provides is that a notice in writing under Clause (a), an opportunity for making a representation in writing under Clause (b), and a reasonable opportunity for hearing under Clause (c), have to be given to the owner of, or any person concerned with, the goods. There is nothing in the said section from which an inference can possibly be drawn that the said notice contemplated by Clause (a) of Section 124, is subject to the provisions contained in Section 110 of the Act. As such, it would not, in my opinion, be proper to import the limitation of six months prescribed by Sub-section (2) of Section 110 (which can be extended for a further period not exceeding six months vide proviso to the said Sub-section (2) into the provisions of Section 124 of the Act. Clearly, Section 124 of the Act does not prescribe any time limit for issuing the show cause notice and I do not think that it is permissible to go into the intention of the legislature for not making provision for such a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of Section 124 of the Act, which, as indicated above, does not contain any time limit for issuance of show cause notice, by saying that in view of the provisions of Sub-section (2) of Section 110, the said notice must be issued within six months of the seizure of the goods or within the duly extended period of not more than six months thereafter. In that view of the matter, it cannot be maintained that a notice, as required under Clause (a) of Section 124 of the Act, is illegal, simply because it had not been issued within six months or the extended period contemplated by subsection (2) or proviso thereto, of Section 110 of the Act.

9. The observations made in para 6 of the judgment in Charandas Malhotra v. Assistant Collector of Customs and Superintendent Preventive Service, AIR 1968 Cal 28, to the effect that-

'So far as Section 110 is concerned, it deals, not with the issue of notice but with the seizure of the goods and the return thereof. In other words, if the provisions are not satisfied the goods seized have to be returned. Therefore, since the extension had not been properly granted the appellant is entitled to the return of the goods. That by itself may not invalidate the notice itself.'

support the view that I have taken that seizure of goods under Sub-section (1) and return of tie same under Sub-section (2) of Section 110 are different from the issuance of show-cause notice for confiscation of goods or imposition of personal penalty as contemplated by Section 124 of the Act. The aforesaid decision of the Calcutta High Court was the subject of review by the Supreme Court in Charan Das Malhotra's case (AIR 1972 SC 689) (supra). The decision of the Calcutta High Court was upheld by the Supreme Court and nothing was remarked against the aforesaid observations. It was rather observed there by the Supreme Court in the concluding portion of para 5 at page 690 that Section 124 does not lay down any period within which the notice required by it has to be given. The period laid down in Section 110(2) affects only the seizure of the goods and not the validity of the notice. To confiscate' would mean to adjudge goods or property to be forfeited to the public domain and to deprive the owner of his right of ownership of the same. Therefore if my reading of the provisions contained in Sections 124 and 110 of the Act is correct, there appears to be no bar for giving the show-cause notice as contemplated by Clause (a) of Section 124, even after the return of the seized goods because of failure to issue such notice within six months or the extended period thereafter as prescribed in Sub-section (2) and proviso thereto, of Section 110. When the provisions contained in the proviso to Sub-section (1) of Section 110, Clause (a) of Section 124, and Sub-section (2) of Section 126 of the Act are looked at, it cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. Similarly, personal penalty can be imposed even when the goods have not been seized. Such a situation is contemplated by Clause (b) of Section 112 of the Act.

No doubt, the contention of the learned counsel for the petitioner that the show-cause notice is illegal because the same had not been issued within the time prescribed by Sub-section (2) of Section 110 finds support from the decision of the Allahabad High Court in Mohammad Hanif v. Collector of Customs and Central Excise, AIR 1973 All 433, but there is no discussion of the matter as to how the non-issue of notice within the time prescribed by Sub-section (2) of Section 110 had rendered the show-cause notice issued under Clause (a) of Section 124 of the Act illegal.

In view of the reasons recorded by me above, I have not been able to persuade myself, with all respect, to agree with the learned Judge who recorded the judgment in Mohamrnad Hanif's case (AIR 1973 AH 433). True, the aforesaid decision of the Allahabad High Court was cited before the Letters Patent Bench which decided L. P. A. No. 208 of 1972, (The Collector of Central Excise and Customs Central Excise Collectorate, Chandigarh v. Tarsem Kumar) on 26th November, 1973. The learned Judges who decided the said appeal did not consider the aforesaid decision of the Allahabal High Court for the reason that the contention respecting illegality of the show-cause notice had not been raised before the Bench which decided the writ petition. There is nothing in the judgment in Tarsem Kumar's case (supra) to show that the aforesaid decision of the Allahabad High Court in Mohammad Hanif's case had been approved by the Letters Patent Bench. Therefore, the decision in the aforesaid letters patent appeal can be of no help to the petitioner.

What would be the effect of adjudication of confiscation of goods after the return of the same to the owner or to the person from whose possession the same had been seized, is a matter which is besides the point. The possibility of non-availability of the goods after return of the same to the owner may not be excluded. The Collector may or may not be able to net the same after the adjudication of confiscation of goods when the same had been returned to the owner under Sub-section (2) of Section 110, but these considerations cannot, in my opinion, for the reason already recorded above, change or restrict the extent and scope of provisions of Section 124. Cash or G. C. notes, after return of the same to the owner under Sub-section (2) of Section 110, may or may not be available on recording of adjudication of confiscation ot the same, but a car or any goods like that may be readily available for taking possession thereof after adjudication of confiscation of the same even though the same had to be returned under Sub-section (2) of Section 110. The provisions contained in subsection (2) of Section 110 are similar to the provisions contained in the second proviso to Section 79 of the Gold Control Act, 1968, and the provisions contained in Section 124 of the Act are similar to the other provisions of the said Section 79 of the Gold Control Act, 1968. Since the petitioner does not admit seizure of the gold from him and does not seek the return of the same, the matter respecting return of the gold or the show-cause notice relating to its confiscation and imposition of personal penalty have not been pursued further. It, thus, follows from the discussion above, that I have not been impressed with the second contention of the learned counsel that the show-cause notices were bad because the same had not been issued within the time prescribed by Sub-section (2) or proviso thereto, of Section 110, and, therefore, I disagree with him on that matter.

10. The third contention of the learned counsel that the proceedings relating to adjudication of the G. C. notes or imposition of personal penalty are barred on the principle of issue-estoppel is untenable for the reasons,--

(1) That confiscation of the G. C. notes or even of gold cannot be said to be prosecution;

(2) That confiscation is a judgment in ran while decision in the opium case is a judgment in personam;

(3) That parties in both the cases will be different. In the opium case, the parties were State of Punjab v. The petitioner, whereas in the confiscation proceedings or in the matter of imposition of personal penalty, the parties will be Collector v. The petitioner; and

(4) That the subject-matter in both the cases is different. It was possession of opium which was the subject of prosecution in the opium case, whereas it is possession of the G. C. notes or even of gold which would be the subject of the proceedings relating to confiscation of the same or with regard to imposition of personal penalty. For the reasons, I find no merit in the third contention of the learned counsel and overrule the same. So, it cannot be said that proceedings relating to adjudication of confiscation of the G. C. notes or imposition of personal penalty are illegal or continuation of the same, is in any way barred.

11. The result is that the extension order is bad being without jurisdiction and has to be struck down, and on that account, the petitioner is entitled to the return of the G. C. notes but. of course, subject to the powers of the Income-tax authorities to seize the same. I, however, find no merit in the writ petition respecting the other reliefs.

Consequently, I partly allow this writ petition and quash the extension order whereby time was extended for issuing the show-cause notice, (Annexure P.3) and direct the respondent to return the G. C. notes of Rs. 1,57,000/- to the petitioner, after notice to the Income-tax Department, Patiala, within one month from today. The respondent would inform the said Income-tax Department about the date and time to be fixed within one month from today when the aforesaid G. C. notes would be returned to the petitioner with intimation of the same to him (petitioner). In case the Income-tax authorities still persist to seize the G. C. notes, they may do so subject to the powers available to them under law, in presence of the petitioner or his duly authorised agent, or even in his absence if the notice of the date and time for the return of the G. C. notes has been duly served upon him. The writ petition respecting the other reliefs, that is, quashing of the show-cause notices and prohibiting the respondent from proceeding with the adjudication of confiscation of the G. C notes and gold and for imposition of personal penalty, is dismissed. Having regard to the special circumstances of the case, I make no order as to costs.


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