Petitioner challenged confiscation of gold and penalty. High Court held adjudication violated natural justice as no hearing was granted. Court set aside impugned order, directing issuance of show cause notice and holding of a hearing.
Impugned order set aside; direction to issue show cause notice and conduct enquiry with hearing within fixed time.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP(MD)No.27248 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.27248 of 2023 and WMP(MD)No.23396 of 2023
Selvam
... Petitioner
Vs
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus calling for the records pertaining to the impugned order in original No.111/2023, dated 05.09.2023 (issued from file C.No.VIII/10/147/2023-Airport) passed by the 2nd respondent and quash the same as illegal, arbitrary and violative of the principle of natural justice and consequently directing the second respondent to release the confiscated gold, ie.,1 No of Gold and 7 Nos of gold
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rings weighing approximately 184.90 grams to the petitioner within the time limit as fixed by this Court on payment of appropriate duty payable by the petitioner without any penalty within the time limit as fixed by this Court.
For petitioner : Ms.K.Balachandran
For Respondents : Mr.N.Dilip Kumar, Standing Counsel
ORDER
The petitioner has filed this writ petition as against the order of confiscation of gold ornaments of this petitioner.
2.The petitioner a passenger from Kuala Lumpur to Chennai, was found in possession of a gold chain, gold
rings seven in numbers weighing 184.90 grams, which was valued at Rs.9,57,159/-. The petitioner has failed to disclose the possession of these gold ornaments and also concealed the same in cosmetic products. It was found by
the authorities on inspection and search. The petitioner has stated that an unknown person at Kuala Lumpur Airport had given the gold ornaments and requested him to clear the
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same without payment of custom duty and without declaration to the custom officers. The unknown person has also offered him a sum of Rs.15,000/- for clearing the goods without any payment of customs duty. Based on this statement recorded from the petitioner, the respondents have proceeded with the adjudication proceedings as per Section 77 of the Customs Act and also confiscated the goods as per Section 111 of the Customs Act. The respondents have also imposed a penalty under Sections 112 (a) and 112 (b) of the Customs Act on 05.09.2023. As against the same the present writ petition is filed.
3.The learned Counsel for the petitioner submits that
the impugned order has been passed without even providing
an opportunity of hearing to the petitioner and in violation of the principle of natural justice and the petitioner has denied statement said to have been given to the respondents on 30.08.2023. The petitioner has also produced the receipts issued by SMS Gold House, Kuala Laumpur, Malaysia that he has purchased the goods from the shops and he denied the alleged statement recorded by the
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respondents. Further the petitioner has studied only upto 8th standard, but the adjudication proceedings were conducted in English.
4.The learned Standing Counsel appearing for the
respondents submits that this petitioner is an agent, who has transported the gold ornaments on behalf of another. He points out that the petitioner went to Kuala Lumpur on 26.08.2023 and returned to India on 30.08.2023. However, the petitioner has produced receipts dated 26.07.2023, 04.08.2023, 23.08.2023, 10.02.2023, 28.01.2023, 24.01.2023 and 07.01.2023. Therefore, the petitioner is not a genuine
traveler and further the goods were also concealed in cosmetics. Therefore, the respondents have proceeded as in accordance with law and passed the order confiscating the goods and imposing penalty.
5.This Court considered the rival submissions made and perused the materials placed on record.
6.The main contention of the petitioner is that he was
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not provided with an opportunity of hearing before the adjudication proceedings were conducted, before passing the order of confiscation and imposing penalty.
7.The learned Standing Counsel for the respondents relied on the statement dated 30.08.2023 said to have been given by the petitioner to the 1st respondent Deputy Commissioner that he had not required any notice for adjudication proceedings and therefore, they have proceeded without issuing any notice.
8.The impugned order also commences with a line that
show cause notice has been dispensed with. The petitioner now denies the letter dated 30.08.2023 that this letter has been prepared by obtaining signature of this petitioner in a blank paper. He also claims that he has studied only upto
8th standard. While so the respondents ought to have informed the charges as against the petitioner in the regional language enabling him to defend the case.
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9.Considering the rival submissions and in order to
give quietus to this issue, this Court sets aside the impugned order.
(i)The 2nd respondent is directed to issue a show cause notice to the petitioner within a period of two weeks from the date of receipt of a copy of this order.
(ii)The petitioner is at liberty to furnish his reply if any, to the show cause notice to be issued by the respondents, within a period of two weeks therefrom.
(iii) The 2nd respondent on receipt of the reply from the petitioner shall conduct enquiry by affording an
opportunity of hearing to the petitioner and pass final orders within a period of fix weeks therefrom.
No costs. Consequently connected miscellaneous petition is closed.
14.12.2023
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dsk
To
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B.PUGALENDHI, J.
dsk
WP(MD)No.27248 of 2023
14.12.2023
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3 issues framed by the court
Whether the confiscation order and penalty imposed by the Customs Authority were legal.
Whether the petitioner was afforded a fair opportunity of hearing before adjudication.
Whether the adjudication proceedings conducted in English were appropriate given the petitioner's education level.
4 provisions across 2 enactments
Selvam
Commissioner of Customs (prev), Williams Road, Cantonment, Tiruchirappalli
Deputy Commissioner of Customs, International Airport, Sembattu, Tiruchirappalli
B.Pugalandhi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
