2014 (12) TMI 529 - HC - Customs

Court quashes freeze on properties lacking jurisdiction under Customs Act, emphasizes compliance with statutory provisions.

KEYUR SHAH Versus UNION OF INDIA

The Court quashed the communications from the Deputy Director, Directorate of Revenue Intelligence, freezing immovable properties, ruling them null and ... Attachment of residential properties of director of company - Petitioners are the Directors of two Companies - Revenue writes to the Secretary of Cooperative Housing Society in which the Petitioners have residential flats and to the Secretary of Soni Chambers wherein the Petitioners as Directors of two Companies are having their office, informing that for protecting interest of the Revenue, three immovable properties mentioned in the said communications should not be sold, transferred or leased out in any manner without written No Objection Certificate from the Directorate of Revenue Intelligence. Held that:- A bare perusal of Section 28BA would indicate that if any proceeding is pending under Section 28 or Section 28AAA or Section 28B, the proper officer must record the opinion that for the purpose of protecting the interest of revenue it is necessary so to do, with previous approval of the Commissioner of Customs that he makes an order in writing for provisionally attaching any property belonging to the person on whom a notice is served under sub-section (1) of Section 28 or sub-section (3) of Section 28AAA or sub-section (2) of Section 28B, as the case may be, in accordance with the rules made in this behalf under Section 142. The provisional attachment shall cease to have effect after the expiry of six months period from the order under sub-section (1). The expectation is that within this period the proceedings be concluded and the liability or duty amount is crystallized. Even if Section 110 of the Customs Act, 1962 has to be resorted, there is something which is required to be recorded. In the present case, merely addressing such communications and insisting on No Objection Certificate of the Department before the immovable properties are transferred, does not come within the ambit and scope of this provision - Decided in favour of assessee. Issues:Challenging communications freezing immovable properties without jurisdiction under Customs Act, 1962.Analysis:The case involved two individuals claiming to be Directors of a private limited company and a public limited company, challenging communications from the Deputy Director, Directorate of Revenue Intelligence, freezing immovable properties without jurisdiction under the Customs Act, 1962. The Petitioners argued that as Directors, they cannot be proceeded against for recovery of customs duty, and the penalty amount against them is yet to be adjudicated. They contended that the communications were null and void, lacking jurisdiction. On the other hand, the Respondent argued that provisions like Section 28BA of the Customs Act allowed for provisional attachment of properties to protect revenue, especially in cases of non-payment of duty. The Respondent urged the Court not to quash the communications to safeguard public interest.The Court examined the provisions of the Customs Act, 1962, specifically Section 28BA, which permits provisional attachment of properties during pending proceedings to protect revenue. The Court noted that the proper officer must record an opinion with the Commissioner's approval to provisionally attach property belonging to the person under investigation. The provisional attachment ceases after six months unless extended by the Chief Commissioner. The Court emphasized that the communications in question did not meet the requirements of Section 28BA, failing to constitute a valid order in writing as mandated by the provision.Furthermore, the Court considered the applicability of Section 110 of the Customs Act, 1962, which requires specific recording of details when invoking its provisions. The Court found that the mere issuance of communications demanding a No Objection Certificate before property transfer did not align with the scope of Section 110. Consequently, the Court quashed and set aside the impugned communications, emphasizing that if the Revenue had powers under other provisions of the Customs Act, they should adhere to those while making appropriate orders within the legal framework. The Court refrained from expressing an opinion on the applicability of Section 28BA or Section 110, granting the Respondents liberty to utilize lawful powers available to them.In conclusion, the Court allowed the Writ Petitions, directing the Petitioners not to dispose of or transfer the mentioned properties for two weeks. The judgment highlighted the necessity for authorities to comply with statutory provisions when taking actions affecting individuals' property rights and emphasized the importance of upholding legal standards in revenue protection measures.