TaxTMI 
TaxTMI 
2021 (8) TMI 932
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....s court shall proceed to decide the present application. Before proceeding to decide the question of maintainability, it is pertinent to succinctly provide the facts in the matter. Through this application, the department has alleged that foreign currency equivalent to INR 1,42,50,257/- and Indian currency equivalent to Rs. 5,32,500/- has been recovered on 29.08.2019. Panchnama was prepared. No admission or denial of the recovery, seizure and other incriminating facts has been done on behalf of the respondent. Ld. SPP mentioned that this court has already recorded and prepared the inventory in another matter which was decided by Ld. CMM and marked to this court. He further mentioned and relied upon the pronouncements of the Hon'ble High Court of Delhi in support of his arguments in Air Customs Vs. Mosafier Alizahi & Ors in CRL.M.C 1490/2020 & CRL.M.A 7224/2020. Ld. Counsel for respondent has relied on the following judgments amongst others in support of his arguments that the present application is maintainable before Executive Magistrate only: 1) M/s Canon India Pvt Ltd Vs. Commissioner of Customs (2021-VIL-34SC-CU) 2) Department of Customs Vs. ....
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....gistrate shall, as soon as may be, allow the application. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs." It is pertinent to mention here that Section 110 of the Customs Act does not contain any provision such as Section 52 A (4) of the NDPS Act which reads as: "(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offen....
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....pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of licence, sanctioning a prosecution, or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate. It is, therefore, clear that the functions to be performed by the Magistrate under Sub-section (1B) of Section 110 of the Customs Act would not involve any appreciation or sifting of evidence which expose any person to any punishment or penalty or detention to custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court. In that view of the matter those functions cannot be said to be the functions to be discharged by Judicial Magistrates. Functions described in Sub- section (1B) of Section 110 of the Customs Act are either executive or administrative nature and therefore, they are exercisable by the Executive Magistrates. Further, Judicial Magis....
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....edents also lays down that when a subsequent decision discusses the previous decisions then the latter in time decision will prevail. This order was challenged before the Hon'ble Supreme Court in Department of Customs v. M/s. Siddhant Enterprises & Anr., Special Leave to Appeal (Crl.) No. 10280/2015 which was decided on 27.10.2015 as: "...Having regard to the scheme under Section 110(1B) of the Customs Act, 1962 in absence of any proceedings in court, the judicial magistrate will not be required for the purpose of certifying the inventory or performing any function mentioned in the said section. The special leave petition is accordingly disposed of." This order lays the discussion to rest as it clearly holds that the proceedings under Section 110 (1B) will not require Judicial (Metropolitan) Magistrate for the purpose which is also the prayer in the application under consideration before me. Hence, at this stage itself it can be safely concluded that the application is not maintainable before the undersigned. However, I find it pertinent and useful to continue the quest with the other judicial pronouncements on the same question to firmly bolster the decisio....