Allowed

Syed Durvesh Moinuddin Shah v. The Superintendent of Customs

Telangana HC9 Dec 2022WP/38674/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the confiscation of foreign currency by the Assistant Commissioner of Customs. The Court held that the impugned order violated Section 124 of the Customs Act, 1962 and principles of natural justice due to the lack of a mandatory show cause notice and hearing before confiscation. The matter was remanded for a fresh proceeding.

What did the court decide?

The impugned order of confiscation is set aside and the matter is remanded to the Assistant Commissioner of Customs to afford the petitioner a reasonable opportunity of hearing.

Syed Durvesh Moinuddin Shah Vs The Superintendent of… — Customs and Excise | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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FRIDAY, THE NINTH DAY OF DECEMBER TWO THOUSAND AND TWENry TWO

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:PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYAN AND

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THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY WRIT PETITION NO: 38674 OF 2022

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Between:

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Syed Durvesh Moinuddin Shah, S/o. Syed Ahmed Qiradri, 9-10-8, Balapur Dargah Shareef, Roshan Dowla Colony, Hyderabad- 500 005

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,..PETITIONER

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AND

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The Superintendent of Customs, Air lntelligence Unit (Batch-A), O/o. AssistanVDeputy Commissioner of Customs, Rajiv Gandhi International Airport, Shamshabad- 500'108

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Assistant Commissioner of Customs, Rajiv Gandhi lnternational Airport, Shamshabad- 500 108

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Union of lndia, Department of Revenue, Represented by its Secretary (Revenue), North Block,New Delhi

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, more particularly one in the nature of writ of Certiorari by setting aside the impugned Order-in-Original No.16212022-AC dated 291612022 passed by the 1st respondent and to release Foreign Currency i.e., Saudi Rivals INR 6,35,250/- seized arbitrarily and illegally, without authority of law, against principles of natural justice and in violation of Article 1a, 19 (1) (g), 21 and 3004 of Constitution of lndia and provisions of Customs Act, 1962, Rules and notifications thereof.

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lA NO:^'l OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the Order-in-Original No.162I2O22-AC daled 291612022 passed by the 2nd respondent.

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Counsel for the Petitioner: SRl. UZAIR AHMED KHAN

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Counsel for the Respondent No.1 & 2: SRI B NARASIMHA SARMA COUNSEL

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FOR CUSTOMS

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The Court made the following: ORDER

THEL,@ALIIILYAN

AND

THII {ON'BLE SRI IUSTTCE C.V.BHAST.AII }t 1l,t!!: W.P.No.38674 of 2022

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ORDER, /Prr /e h rbh tir ChidJa t Ltjjal Bhalan)

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Fleard I k. Uzair Ahmed Khan, learned co:r:sel for the petitioner aru trzlr. B.Narsimha Sarma, leamed counsel for respondenE N r.1 and 2.

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Challeng nude in this u,rit petition is to the onle..in-original dated 29.06.2( 22 passed by the Assistant Qrm.lrissioner of C.storns, R^j , Gandhi Intemational Ailpon, Shanshabad, Hyderabad (res^,ondent No.2).

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By the al ;rcs,rid order. Assistant C-ommissione' ,:onfiscated foreign curren( z equivalent to INR 6,35,250/- seiz:d frcm the petitioner dde p nchanama dated 28.0I.2022 in temrs <.,f S,ections 113(d), 113(e) a d 1ll(h) o[ the Gstoms Ncr,1962 (brrfly'Act of 1952' hereinali r) read with Iroreign Exchangc ivhna3ement (Expon and Irr rc,r"t of C,urrencl) Regulations, 2015 mrde under the Iroreign Exc ange l&nagement Act, 1999.

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By the aforesaid order, penahy of Rs.64,000/- was also imposed upon the petitioner in terms of Section t1+(f of the Act of 1962.

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On a query by the Court as to why petitioner has not preferred appeal under Section 128 of the Act of 1962 against the order-in-original dated 29.06.2022, leamed counsel for the petitioner submis that the impugned order is in gross violation of the principles o[ natural^justice; no hearing was granted to the petitioner before absolute confiscation was ordered.

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lVhen the attention of leamed counsel for the petitioner was drawn to paragraph 11 of the impugned ordet which sa)6 thar the passenger (petitioner) in his statement dated 28.0L.2022 requested that the case ray be decided on merits without issuance of show cause notice and personal hearing, he submits that at the time of seizure, staternent of the petitioner was allegedly recorded; petitioner v,as nrade to sign on a computer printed sheet of paper copy ol which was irlso not fumished to the petitioner. Thereafter, petitioner had sr.rbnritted letter to the Superintendent of C,utoms

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ol 31.01.202i requesting him to fumish him a c':p'. of the

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statement allel :dly recorded from the petitioneq f urtht.r n:questing the said authc ityto preserve the CCTV footage [r<,::tt2,'.01-2022 ro 29.01.2022. llhereafter, petitioner sent an e-meil orr 31.05.2022 requesting thr Superintendent of Grtoms to apprise hirr of the steps taken pu suant to his request made on 3l)1.20.t-2.

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Leamec counsel for the petitioner has also rclerred to order dated 11.05.2( 22 passed by the fusistant C-ommission:r under the Right to Info mation Act, 2005 wherein it was nrencic,nel that no reply dated 31 01..2022 was received but consent fonraiver of show cause notice rnd penonal hearing was made in I l,e r;tatement dated 28.01.2i 22 bythe passenger (petitioner). By t rc sare order, lt was statec that the passenger (petitioner) nu)'re(luest the adjudicating authority for funher penonal h:arin1; before adjudication c : the case.

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On the rther hand, leamed counsel for r,:sponlt'nts No.1 \ ' and2 submir that the impLrgned order is an appe,rl.rlrk order and

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'ji

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therefore, petitioner may file appeal before the Commissioner of Grstoms under Section 128 o[ rhe Act of 1962.

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\fle have heard leamed counsel for the parties and pensed the materials on record.

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C-onfiscation of goods attempted to be improperly exported atr., is provided under Section 113 of the Act. of l962and penalry for attempt to export goods impropedy is provided trnder Section 114 of the aforesaid Act. However, Section L24 thereof deals with the issue of show cause notice before confiscation of

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goods etc. Section 124 of the Grstoms Lct, !962 reads as under:

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Issue of shos, cause notice before confiscation of goods, etc.- No ordcr confiscating any goods or itrposing any penalry on any person shall be made under this Chapter unless the owner of the goods or such person-

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(a) is given a notice in [urrting with the prior approval of t]re officer of custorns not below the rank of [an Assistant C-ommissioner of Crstorns] urlbrming] him of the grounds on which it is proposed to conliscate the goods or to imposi a penalry

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(b) is given an opportunitv of rnaking a reprcsentation in writing within such reasonable time rs may be specified in the notice

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against dr( grounds of confiscation or impositior r ,rf penalry mentioned therein; and

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Provided hat the notice referred to in clause (a) and the representai ron referred to in clause 0) -ry, at the n,q'rest of the person cor ;eme{ be oral

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[Provided^{unher that norwfuhsunding-issueo[ noti:e underthis} sectiorL *: proper officer may issue a supplemently notice under suc r circumstances and in such m.rnner a,; nray be prescribed

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tl. From perusal of the above, it is seen tlrat no order

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confiscating :^ir1, goods or imposing any penaltv on arL,, pe non shall be made unh';s the owner of the goods or suclr pe rs)n is given a notice in *.i i"g with the prior approval oi tht' hirrer authoriry infonning th, grounds on nfiich it is proposecl to r:cnliscate the goods or to inpose a penalry such person is givcrr :r opponunity of making a epresentation in writing within such re:rsonable time as may b(' specified in the notice against th:^grrtu-rds of confiscation , r imposition of penalty. Fr-rnher'. srrtl. a pcnon must -be gir.en a re: sonable opponunityof being hearcl in the rnatter. As

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per the first proviso, notice as well as the representation may at the request of the person concemed be onl.

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From a careful analpis of the aforesaid provision, it is clearly discemible that the owner of the goods or such person from whom the goods are seized may make a request to the competent affhoriry that the show carse notice preceding confiscation as well as the representation to be submitted may be oral. Therefore, the show cause notice and the response thereto may be in writing or may be oral on request of the person concemed. Show cause notice and representation thereto are mandatory those can only be oral on request of the person concemed. There is no provision for waiver of the requirement for such show cause notice or the right to submit representation. That apart, clause 'c' of Section 124 as extracted above is independent oi the show cause notice as well as the right to make a representation, u,4rich mandates that before confiscation, a reasonable opponunity of hearing must be given either to the owner or to such pe6on from whom the goods were seized. Principlcs o[ natural iustice and due proceduo .o-__* I

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therefore inbu Lt in Section 724 of the Act o[ L't62. Since confiscation h, s serious consequences, the pr,>cedure prescribed under Section 24 has to be followed.

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[n the in tant case, it is evident that the proce<hut prescribed has not been I rllowed. That apart, copy of tlle d,)ilrmcnt relied upon by resp^rndsnl No.2 against the petitioner v;.s ,rlso not fumished to th r petitioner.

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That bei rg the position, we are of the view t rar irnpugned order passed ry the Assistant Commissioner is ir ',iolation of Section 124 ol the Actof 1962 as well as the grrinc(rles o[ narural ,rl.strcc.

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It is wel seftled that when there is violation of tl.e 1,rin6ip[65 of natural^justr :e, availabiliry of alternative reme dy u'r,r,r d [,e no bar to invoke jur:diction under Article 226 ol the^{(lrlstirution} oi I ndia.

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We ther 'fore set aside the order-in-original dur',1 2e.06.2a22 passed b-v res; rndent No.2 and remand the mr,tter [-r,,.k tr the iile

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of respondent No.2 2.r., Assistant C,omnissioner of Grtoms to give due opponuniry of hearing to the petitioner and thereafter pass appropriate order in accordance with law. This s hall be done within a period of four weelis from the date of receipt of a copy of this order.

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Till such time a decision is rendered by respondent No.2-

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Assistant Commissioner, thc goods ordered to be confiscated shall

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be construed to be under seizure and would abide by such further order that may be passed by respondent No.2 on remand.

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(rit Petition is accordingly allowed. No costs.

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As a sequel, miscellaneous petitions, pending if any, stand

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closed.

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SDI-T AYASREE ISTRAR ASSISTANT ,,TRUE^COPY// SE CER

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To,

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j33i!i;? ;,3/,?onur

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1. rhe superinteng"l! ?1!,llliH; *,'"'i|iJH::i",,i,t til:[^{tff{ :i!i,}":} I^l i: i u sto^{m s, Raji v G a n d h i r nter n atio n a r Ai rpo rt,}

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1. The Assistant inurtnuurO-^{Commisstone500 108} " )epartment^{of Revenue, Unionof lndia'North}

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3 The Secretary^{(Revenue;' t}

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3::!i:]iii'!nH:ixlT3:J:::r"':;,u.?'ropuc,

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5 One^{CC to SRI B Narastm} o Two^{CD CoPies}

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HIGH COURT

UB.J E CVBR.J

DATEfi:0911212O2:2

/(;6;E><br>7 Lti; 2$21
/.,

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ORDEIT

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WP.No.38674 ol 2Q 2

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WRIT PETITION l$; rl-LOWED WITHOUT COST

Syed Durvesh Moinuddin Shah v. The Superintendent of Customs

Case brief

What is this about?

What did the court decide?

Syed Durvesh Moinuddin Shah v. The Superintendent of Customs

Case brief

What is this about?

What did the court decide?

What the court decided

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