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P.T.C. Thangiah Nadar and Co. Vs. the Assistant Collector of Central Excise - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 138 of 1976, against judgment of Mohan J. in W.P. No. 1598 of 1976, D/- 22-4-1976 (M
Judge
Reported inAIR1977Mad121
ActsCustoms Act - Sections 110(2) and 124
AppellantP.T.C. Thangiah Nadar and Co.
RespondentThe Assistant Collector of Central Excise
Excerpt:
- .....extended by three months in the order dated 6-12-1974. the statement of the department that the time was extended by three months by the notice dated 6-12-1974 is not correct.6. as we have seen already, the notice was only a show cause notice asking the appellants to show cause why the period should not be extended. there was no extension of time. therefore, the only notice that extended the time was dated 1-4-1975, which is beyond six months from the date of seizure and it would attract the prohibition under section 110(2). as valid notice under section 124(a) within six months was not given, the goods will have to be returned.7. accordingly, the writ appeal is allowed and the respondent is directed to return the goods. no order as to costs. the respondent will deliver the goods as.....
Judgment:

Kailasam, C.J.

1. This appeal is filed by P.T.C. Thangiah Nadar and Co., Madurai, against the judgment of Mohan J. dismissing their writ petition in which they had prayed for the issue of a writ of mandamus directing the respondent herein, namely, the Assistant Collector of Central Excise, Customs Division, Madurai, to return and deliver the goods i.e., cloves weighing 42 kgs. and Vasambu weighing 100 kgs. to them (appellant) which were seized at Madurai on 3-9-1974. The only point that was taken before the learned Judge was that due notice under Sections 110(2) and 124 of the Customs Act were not given. The learned Judge negatived the contention and hence this appeal. The goods were seized on 3-9-1974.

2. Under Section 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 whose possession they were seized.'

There is a proviso to the effect 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. Section 124(a) requires that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person 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.

4. As already stated, the goods were seized on 3-9-1974, and the notice of confiscation ought to have been given within six months i.e., before 3-3-1975. The show cause notice was actually given on 1-4-1975, i.e., after the expiry of six months. But the respondent sought to sustain the legality of the notice on the ground that the notice of proposal to extend the time dated 6-12-1974 was served on the appellants by the Assistant Collector and this would have the effect of extending the time. The notice of proposal to extend the time, dated 6-12-1974, states-

'And whereas it is proposed to extend the time limit for completion of the investigation by 3 months you are hereby required to state within ten days from the date of receipt hereof as to why such extension of time for extending the period of investigation and issue of the final show cause notice should not be granted. If no reply is received within the time limit it will be deemed that you have no explanation to offer and decision taken ex parte.'

This paragraph makes it clear that this was only a show cause notice requiring the appellants to file their objections as to why the time should not be extended. This notice is signed by the Assistant Collector 'for Collector'.

5. The notice extending the time dated 1-4-1975 states that the time limit for the issue of show cause notice in this case was extended by three months in the order dated 6-12-1974. The statement of the department that the time was extended by three months by the notice dated 6-12-1974 is not correct.

6. As we have seen already, the notice was only a show cause notice asking the appellants to show cause why the period should not be extended. There was no extension of time. Therefore, the only notice that extended the time was dated 1-4-1975, which is beyond six months from the date of seizure and it would attract the prohibition under Section 110(2). As valid notice under Section 124(a) within six months was not given, the goods will have to be returned.

7. Accordingly, the writ appeal is allowed and the respondent is directed to return the goods. No order as to costs. The respondent will deliver the goods as expeditiously as possible, not later than 10th August 1976. This order is without prejudice to the respondent's right to take any action which he may choose under the Act.

8. Appeal allowed.


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