2025 (11) TMI 1575 - HC - Customs

Release of detained 117g gold bar refused in writ; Section 110(2) time limit independent, inquiry directed

HC disposed of the writ petition seeking release of a detained 117-gram gold bar without issuing SCN under Section 110 of the Customs Act, 1962. Relying ... Seeking release of one gold bar weighing 117 grams which was detained by the Customs Department - after the detention of the gold bar, no SCN has been issued to the Petitioner under Section 110 of the Customs Act, 1962 and no personal hearing was provided - Violation of principles of natural justice - HELD THAT:- The Petitioner is seeking release of the gold bar as continued detention of the same would be contrary to law, in view of the recent decision of the Supreme Court in Jatin Ahuja [2025 (10) TMI 1285 - SC ORDER] where it was held that 'the time period to issue notice under Clause (a) of Section 124 is prescribed only in sub-section (2) of Section 110 of the Act, 1962. This time period has nothing to do ultimately with the issuance of show-cause notice under Section 124 of the Act, 1962. The two provisions are distinct and they operate in a different field.' Statements under Section 108 would not be admissible in evidence but the said statement at least reveals that a factual inquiry would be required to be undertaken in respect of the contents of the statement as also if the gold bar bears foreign origin markings. These facts cannot be gone into in the present writ petition. Under these circumstances, let the Petitioner appear before the Customs Department on 22nd December, 2025 either physically or through his Authorised Representative with a proper authorisation - In case, the Petitioner is not physically appearing, he shall join the proceedings virtually. After verifying his credentials and affording a hearing the Customs Department shall pass an order in accordance with law. Petition disposed off. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether continued detention of the seized gold bar is lawful in the absence of issuance of a show cause notice within the statutory period under Section 110(2) of the Customs Act, 1962. 1.2 Whether the statement recorded under Section 108 of the Customs Act, 1962, including the purported waiver of show cause notice and personal hearing, could by itself justify confiscation or non-release of the seized gold bar in writ jurisdiction. 1.3 Whether the writ petition seeking direct release of the gold bar could be allowed without a factual inquiry by the Customs Department regarding ownership and foreign origin markings, and what directions were required to ensure due process. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Legality of continued detention of the seized gold bar without issuance of show cause notice under Section 110(2) Interpretation and reasoning 2.1 The Court noted that the petitioner's gold bar was seized on 5 January 2023 and that no show cause notice had been issued nor any personal hearing granted thereafter. 2.2 The Court relied on the decision of the Supreme Court in Union of India v. Jatin Ahuja, which held that: (i) the only power to extend the six-month period prescribed in Section 110(2) lies in the first proviso to Section 110(2); (ii) release under Section 110A is merely interim and does not affect the mandatory consequence in Section 110(2); and (iii) where no notice under Section 124(a) is given within six months of seizure, and no valid extension under the first proviso is made, the seized goods must be returned to the person from whose possession they were seized. 2.3 The Court further noted the Supreme Court's clarification that the time period to issue notice under Section 124(a) is laid down only in Section 110(2), that the provisions are distinct, and that the consequence of non-compliance with Section 110(2) is return of the seized goods. Conclusions 2.4 The Court held that, while deciding the petitioner's case, the Customs Department must bear in mind that, under Section 110 of the Customs Act, 1962, read with the law declared in Jatin Ahuja, if no show cause notice has been issued within the statutory period (and validly extended period, if any), the seized goods are liable to be returned to the person from whose possession they were seized. Issue 2 - Effect of statement under Section 108 and purported waiver of show cause notice and hearing Legal framework (as discussed) 2.5 The statement of the petitioner was recorded under Section 108 of the Customs Act, 1962, wherein he stated that the gold bar did not belong to him, admitted his omission and commission, expressed willingness to pay duty, fine and penalty, and stated that he did not need any show cause notice or personal hearing. Interpretation and reasoning 2.6 The Court observed that statements under Section 108 would not be admissible in evidence but that such a statement at least reveals the need for a factual inquiry regarding (i) the correctness of the contents of the statement, and (ii) whether the gold bar bears foreign origin markings. 2.7 The Court noted that a pre-printed waiver of show cause notice and personal hearing had been relied upon by the Customs Department in this case. 2.8 The Court directed that, while passing the final order, the Customs Department shall also consider the legal position laid down in Amit Kumar v. Commissioner of Customs, where no show cause notice was issued and no personal hearing was granted, and a pre-printed waiver of show cause notice and hearing was relied upon. Conclusions 2.9 The Court held that the Section 108 statement and purported waiver cannot, by themselves and without factual inquiry and due process, justify confiscation or continued non-release in the present writ proceedings, and that the competent authority must examine these aspects in light of the binding legal position, including Amit Kumar. Issue 3 - Necessity of factual inquiry by Customs and appropriateness of relief in writ jurisdiction Interpretation and reasoning 2.10 The Court recorded the respondent's contention that the petitioner himself stated that the gold bar did not belong to him, that he had not purchased it, and that the gold bar carried foreign markings, and therefore, in the absence of evidence of ownership, it was liable to confiscation. 2.11 The Court held that the petitioner's Section 108 statement, the question of ownership, and the issue whether the gold bar bears foreign origin markings involve factual determinations which cannot be undertaken in a writ petition. 2.12 Considering these aspects, the Court directed the petitioner to appear before the Customs Department on a specified date, either physically or through an authorised representative, and, if not physically present, to join virtually. The Court further directed that, after verifying the petitioner's credentials and affording him a hearing, the Customs Department shall pass an order in accordance with law. 2.13 The Court also directed that the competent authority shall keep in mind the legal position under Section 110 of the Customs Act, 1962, as interpreted in Jatin Ahuja, and the decision in Amit Kumar, while deciding the matter. Conclusions 2.14 The Court declined to order direct release of the gold bar in the writ petition and instead directed a time-bound appearance and adjudication before the Customs Department, with an obligation on the authority to afford hearing, verify credentials, conduct the necessary factual inquiry, and decide the issue of release or confiscation strictly in accordance with the statutory scheme and binding precedents.