Adjudication Without a Show-Cause Notice in Air Customs Gold Seizures: A Legal Nullity

I. Introduction

A disturbing practice, in vogue for several years at Indian airports, involves Customs officers presenting intercepted passengers with pre-printed waiver forms. These forms state that the passenger does not require a show-cause notice (SCN) and consents to instant adjudication. Based on such “waivers,” the  adjudicating authority (Superintendents/Assistant/Deputy /Joint/Additional Commissioner) that SCN is unnecessary at the passenger’s wish and proceeds to issue an Order-in-Original (OIO) on the spot or afterwards.

The justification advanced is speedy disposal, ostensibly to reduce warehousing congestion. But legality cannot be sacrificed for convenience. The SCN under Section 124 of the Customs Act, 1962 is not a ritual—it is the very jurisdictional foundation of confiscation.

II. Statutory Mandate

Section 124 of the Customs Act, 1962 provides:

“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; and

(c) is given a reasonable opportunity of being heard in the matter.”

The proviso permits oral notice, but only at the request of the person concerned. There is no provision allowing waiver of SCN altogether.

Section 110(2) further mandates that where goods are seized, if no SCN is issued within six months (extendable once by six months through a reasoned order communicated to the passenger), the goods must be released.

III. The Practice of Waiver and Standard Formats

Two formats have become institutionalised at airports:

1. Standard SCN-waiver format – a pre-drafted declaration signed by the passenger, stating that no written SCN is required and requesting immediate adjudication.
2. Standard adjudication format – a template order where the JC records that SCN is not necessary (being waived by the passenger) and imposes confiscation/penalty.

Though portrayed as a convenience measure, these formats are routinely signed by passengers under stress and without legal advice. Courts have consistently rejected such practices as contrary to statute and natural justice.

IV. Judicial Pronouncements

A. High Court Rulings

• Ms. Shubhangi Gupta v. Commissioner of Customs – Held that there is no legal provision to waive SCN; OIOs based on waiver formats are without jurisdiction.
• Aman Verma v. Commissioner of Customs,  
  – Struck down reliance on pre-printed waiver forms; oral SCN must be a conscious, informed choice, not a pre-scripted template.
• Pradeepa Shivashankar v. Commissioner of Customs,  
  – Described the practice of using waiver/adjudication formats as “shocking to the conscience”; quashed the OIOs.
• Manan Karan Sharma v. Commissioner of Customs
  – Clarified that summons under Section 108 are investigatory, not adjudicatory; absence of SCN within statutory time is fatal.

B. Supreme Court on Confiscation Architecture

• Union of India v.  Section 125(1) redemption fine and Section 125(2) duty/interest arise only after such notice. Skipping SCN renders the proceeding void.

V. Analysis: Why Standard Waivers Fail

1. Statutory command – Section 124’s opening words “no order… shall be made unless” are mandatory.
2. Oral  waiver – The proviso only permits oral SCN at passenger’s request; it does not extinguish the requirement of SCN.
3. Coercion in practice – Pre-printed waivers are routinely signed under duress; courts view such consent as involuntary.
4. Natural justice denied – Instant adjudication deprives passengers of time to prepare a defence, violating Articles 14 and 21 of the Constitution.
5.  Adjudicating authority’s recording insufficient – An officer’s note that “pax requested no SCN” cannot override a statutory safeguard.

VI. Remedies

• Writ petitions – High Courts have repeatedly quashed OIOs based on waiver formats, treating the defect as jurisdictional.
• Appeals under Section 128 – Available, but writ jurisdiction is more efficacious when natural justice is denied.
• Reliefs granted – Quashing of OIOs, release of goods, and in some cases waiver of warehousing charges.

VII. Conclusion

Although the practice of waiver and standard formats has been in vogue for years, it remains legally indefensible. The courts have spoken with clarity: SCN is a jurisdictional precondition, not a dispensable formality. Neither passenger consent nor administrative convenience can justify bypassing it.

Unless Customs abandons this practice, airport adjudications will continue to be struck down, eroding both enforcement credibility and public trust.