TaxTMI 
TaxTMI 
2019 (7) TMI 341
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.... be arriving into India at Kempegowda International Airport at Bangalore from Dubai (Indigo Airlines 6E 96) on 15/10/2015 and are likely to smuggle gold by way of concealment on person without declaring the same to the Customs authorities and without payment of duty. The DRI officers intercepted the appellants and found in their possession two gold bars of 0.995 purity totally weighing 2000.14 gms valued at Rs. 53,88,377/- (at the market rate) concealed discreetly in their baggage. The said gold was undeclared and was attempted to be smuggled into India by the appellants for commission. Once gold bar weighing 1 kg with markings 'Kaloti Dubai 1kg (1000.04 gms) GOLD 995 KJI MELTER ASSAYER kaloti Int‟l DMCC" with serial No.A496983 was found concealed by Shri Sudharshan Ashok Kumar neatly wrapped in a white paper and kept in a grey plastic pouch in the deep green coloured hand bag with logo "wonder" carried by him. Similarly one gold bar weighing 1 kg with markings "ARG UAE 1 KILO (1000.10 gms) 995 GOLD ARG MELTER ASSAYER" with serial No.B05370 was concealed by Shri Ismail Ibrahim neatly wrapped in a brown paper cover and further wrapped in white paper and kept in white red plast....
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....sworn affidavits on 27/10/2015. He further submitted that in the impugned order, the Commissioner(Appeals) has not taken into consideration the facts stated in the grounds of appeal and deposed in the affidavits executed on 27/10/2015 soon after release from custody. He further submitted that it is a settled law that retracted statements cannot be relied upon without corroboration of material particulars by independent evidence. for this submission, he relied upon the following decisions:- i. Vinod solanki Vs. UOI [2009(233) ELT 157 (SC)] ii. Pascoal Dias Vs. ACC, Goad [2003(157) ELT 132 (Bom.)] Affirmed by the Hon'ble Supreme Court [2011(268) ELT 433 (SC)] iii. KI Pavunny Vs. Asst. Collector of Central Excise [1997(90) ELT 241 (SC)] iv. Mohtesham Mohd Ismail Vs. Spl Director, ED [2007(220) ELT 3 (SC)] v. Commissioner Vs. Fact Paper Mill Ltd. [2015(322) ELT 283 (Guj.)] 4.2. On the second ground of appeal, the learned counsel submitted that the officers of Customs seized one gold bar with marking "Kaloti Dubai 1kg GOLD 995 serial No.A496983 weighing 1000.04 gms found in the hand bag of Shri Sudharshan Ashok Kumar and one gold bar....
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....ttam Jajodia, Amit Kumar, KM Udyog Vs. DRI, New Delhi [2014(307) ELT 837 (Del.)] where the Hon'ble High Court has examined and interpreted the language used in Section 110(2) to conclude that the show-cause notice must be 'given'to the person before expiry of six months from the date of seizure of goods. He particularly referred to para 13 of the judgment, which is reproduced below:- 13. The key words, according to us, are - 'informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty‟. The object of Section 124(a) is that the person concerned had to be informed of the grounds on which the confiscation of the goods is to be founded. This can only happen when the person from whom the goods have been seized, receives the notice and is capable of reading and understanding the grounds of the proposed confiscation. Therefore, according to us, upon a conjoint reading of Section 110(2) and Section 124(a) of the said Act, the notice contemplated in these provisions can only be regarded as having been "given" when it is actually received or deemed to be received by the person from whom the goods have been seized. The whole object ....
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....d further penalty of Rs. 5 lakhs under Section 114AA are not sustainable because the requirements of Section 111 have not been complied with. He also relied upon the decision of Tribunal in the case of Rakheeb Ulla Baig Vs. CC, Bangalore [Final Order No.20300/2019 dt. 29/03/2019]. 5. On the other hand, the learned AR defended the impugned order and submitted that the Department has issued the show-cause notice as prescribed in Section 110(2) of the Act within a period of six months and as per the requirement of Section 153, the only requirement is to send the notice within a period of six months. He further submitted that this issue has been considered by the Hon'ble High Court of Karnataka in the case of K. Abdulla Kunhi Abdul Rahaman vs. Addl. Commissioner of Customs, Bengaluru [2015(330) ELT 148 (Kar.)] wherein the Hon'ble High Court has considered various decisions of the High Courts as well as the provisions of Section 110(2) and Section 124 of the customs Act. He further submitted that the Karnataka High Court has also considered the decision of Delhi High Court in the case of Purushottam Jajodia Vs. DRI [2014(307) ELT 837 (Del.)]. She further submitted that Ho....
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....016 wherein also the appellants did not state that they retract their statements recorded on 15/10/2015. In view of these facts, I hold that appellants have confessed their guilty by specifically confessing the same in their statement and the Mahazar proceedings both dt. 15/102015. Further I find that the allegation of the appellant that there is a violation of Section 110(2) as the notice of seizure has not been given to the appellants within the period of six months as stipulated in the said provisions. I find that Hon'ble High Court of Karnataka in the case of K. Abdulla Kunhi Abdul Rahaman cited supra has considered the provisions of Section 110(2) as well as Section 153 and has also considered various judgments of the other High courts including the High Court of Delhi in the case of Purushottam Jajodia which has been heavily relied upon by the appellant. After considering the provisions of the Act and various decisions, Hon'ble High Court in para 14 to 22 has held as under:- 14. It would be apt at this juncture itself to refer to the decisions relied upon by the learned counsel appearing for the petitioner namely in the case of Purushottam Jajodia v. Dir.....
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.... Annexure-F issued by third respondent would clearly indicate that show cause notice-Annexure-A came to be issued within a period of six months from the date of seizure of goods as contemplated under Section 110(2) of the Customs Act. 17. Section 110(2) indicates where goods are seized under Section 110(1) and no notice in respect thereof is given under Section 124(a) within six (6) months of the seizure, such goods are to be returned under Section 124(a) of the Act. No confiscation of goods imposition of penalty can be passed or levied without issuance of notice in writing unless waived by person concerned. In the instant case goods came to be confiscated by the proper officer on 16-9-2013. Show cause notice came to be issued on 13-3-2014 i.e., before expiry of six months period prescribed i.e., before 15-3-2014. Postal cover under which show cause notice-Annexure-A was dispatched has been produced along with writ petition at Annexure-B and same would disclose it has been dispatched by the Office of DRI, Palarivattom, Kochi on 13-3-2014 itself and petitioner is undisputedly a resident of Kerala State and said postal cover also bears the postal seal dated 15-3-2014. Thus, ....
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....3 of the Act would clearly indicate that it does not contain the word "given" as found in Section 110(2) or 124 of the Act. It is well settled proposition of law that true meaning of the words and expressions used by the Legislature must be given effect to and Courts must have regard to the aim, object and scope of the object to he achieved while interpreting the words used in a statute. 21. The Select Committee while recommending repeal of Sea Customs Act, 1878 and for introducing the Customs Act, 1962 in their report have observed to the following effect : "The Committee are of the view that if any goods are seized proceedings in the nature of Show Cause Notice should be started within six months of the seizure but this period may be on sufficient cause being shown to be extended by the Collector for Customs for a further period of six months. If Show Cause Notice is not issued within a specified period, the goods should be returned to the person from whom they were seized. The Committee also feels that in order to ...in himself or inconvenience to a person from whom the documents are seized, he should be entitled to make copies thereof or take extracts therefro....
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....ckoned from the date of seizure of the goods to the date of receipt of notice by him under Section 124 (a) and not to the date of despatch of the notice. He submitted that the use of the word given in sub-section (2) shows that the notice must be actually served on the person, and that it was not sufficient that the notice was despatched. The question has to be decided on first impressions as it does not appear to have been covered by any decision. Section 124 (a) deals with issue of show cause notice before confiscation of the goods etc.; and that section also states that the owner of the goods or the person on whom the penalty is proposed to be imposed shall be given notice in writing. That by itself does not give any indication whether the relevant date is the date of issue of the notice or the date of receipt of the notice of the person concerned. Section 153 of the Act deals with service of order, decision etc. and it reads:- "153. Service or order, decision etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to t....