TaxTMI 
TaxTMI 
2016 (4) TMI 408
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....e plea of the Customs Department (Respondents herein) on the other hand, is that in the course of the investigation following the seizure of the goods in question, a statement was voluntarily made on 29th June 2015 by Mr. Ujjawal Pugalia, the Sole Proprietor of the Petitioner, inter alia that "I do not want any show cause notice and any personal hearing and matter may be decided on merit in my absence." It is therefore contended that there was no requirement to give a SCN to the Petitioner within six months. Further, since there is no time limit prescribed for completion of the adjudication, the Petitioner cannot invoke Section 110 (2) of the Act and seek unconditional release of the seized goods. 4. The questions that arise for consideration: (i) Whether there could be any valid waiver of the right to be given a SCN under Section 124 (a) of the Act; and (ii) If the answer to (i) above is in the affirmative, is there a corresponding obligation on the Customs Department to pass an adjudication order within a reasonable period and what is the consequence of the Customs Department failing to do so? 5. It is submitted by Mrs. Anjali J. Manish, learned counsel for the Petiti....
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.... that on account of the failure by the Petitioner to cooperate with the Customs Department, an adjudication order could not be passed. According to him, after appearing once before the Customs Officer, the Sole Proprietor of the Petitioner did not turn up. Mr. Kaushik submitted that if the Court so permits, the Customs Department is prepared to pass an adjudication order in a time-bound manner. 9. Referring to the decision in S.N. Ojha v. Commissioner of Customs 2016 (331) ELT 33 (Del), Mr. Kaushik submitted that the Petitioner would be bound by the statement made by its Sole Proprietor under Section 108 of the Act and such statement, even if subsequently retracted, could be used against him in the adjudication proceedings. He pointed out that in the present case the Petitioner did not contend that the aforesaid statement was obtained under duress or coercion. In fact, till date, the said statement has not been retracted. Mr. Kaushik also referred to the decision of the Supreme Court in Surjeet Singh Chhabra v. Union of India 1997 (89) ELT 646 (SC) where it was observed that the Customs Officers are not Police Officers and therefore, the statement made to them him under Section ....
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.... oral." 11. It requires to be noticed at the outset that an order confiscating the illegally imported goods can be passed only after the mandatory condition of Section 124 is satisfied and an adjudication order is passed. Section 124 (a) requires a notice in writing to be given to either the owner of the goods or the person from whom they were seized, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Section 124 (b) mandates that the owner of the goods or the person from whom the goods have been seized concerned should be given an opportunity of making a representation in writing within such reasonable time. Thirdly, under Section 124 (c) of the Act, such owner or person should be given a reasonable opportunity of being heard. 12. The proviso to Section 124 makes it possible for both the notices under Section 124 (a) and the representation under Section 124 (b) of the Act to be oral at the request of the person concerned. Therefore, it is possible that there might be a waiver by the owner or person of the right to be given an SCN in writing with a view to act expediting the adjudication proceedings. 13.1 A somewhat similar....
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....ings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person." 14. Although Mrs. Manish sought to distinguish the above decision on the ground that the statement made in the instant case was under Section 108 of the Act, the Court finds that the latter statement, even if retracted, can be acted upon by the Customs Department, although in the present case there is no such retraction. In K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997) 3 SCC 721, the Supreme Court clarified that the Customs Officers are not the Police Officers, and therefore, a confessional statement made to them under Section 108 of the Act could be relied upon as long as it was made voluntarily and not obtained under threat, inducement or promise. Earlier, in Surjeet Singh Chhabra v. Union of India (supra) the Supreme Court clarified that the statement could be relied upon even if it was subsequently retracted. 15. Circular 290/6/97- CX dated 20th January 1997 issued by the CBEC emphasized that where prima facie offences of serious nature or high stakes and/or legal questions are....
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....n 110A of the Act, and if no SCN is issued under Section 124 (a), that Section 110 (2) would apply. The mandatory nature of Section 110 has been emphasized in J.K. Bardolia Mills v. Deputy Collector 1994 (72) ELT 813 (SC). 19. Recently, this Court in Auto Creaters v. Union of India (supra) reiterated the above legal position. It was held that the time taken for adjudication of any issue cannot be excluded while reckoning the six months period mandated by Section 110 (2) of the Act. The conclusion was that the time limit under Section 110 (2) for giving a SCN to the person from whose goods was seized, is mandatory in nature. There are two time limits: an initial period of six months and, an extension by a further period of six months on sufficient cause being shown. For such extension of time the provision requires application of mind by the Customs Department to the facts of the case and being satisfied that for bona fide reasons the investigation cannot be completed within the first six months after the seizure. In other words, as explained in Assistant Collector of Customs v. Charan Das Malhotra (1971) 1 SCC 697 the extension of time is not to be granted mechanically or as a m....
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....xpectation of expeditious adjudication. At this juncture it requires to be noticed that the Petitioner imported three consignments under three different B/Es. In respect of all the three B/Es, the Petitioner waived the right to be given an SCN. In respect of two of the B/Es an adjudication order was passed, and the Petitioner paid the demand without demur. It is only in respect of the third B/E, which forms the subject matter of the present writ petition, that the Respondents neither issued an SCN nor passed any adjudication order for a year after the seizure of the goods. The explanation offered by the Respondents for not passing the adjudication order is not at all convincing. Even assuming that the Sole Proprietor of the Petitioner did not continue to appear before the Officer concerned, there was no justification for not completing the proceedings and passing an adjudication order within a reasonable time. The Petitioner is right in contending that it cannot be worse off for having waived the right to be given an SCN under Section 124 (a) of the Act. That waiver was plainly in the expectation of expeditious adjudication. However, as a result of the inaction of the Respondents, ....