TaxTMI 
TaxTMI 
2024 (12) TMI 619
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....ay, ADSG (In Civil Writ Jurisdiction Case No. 7682 of 2020) For the Petitioner/s : Mr. Prabhat Ranjan Dwivedi, Advocate Mr. Chandan Kumar, Advocate Mr. Ansh Prasad, Advocate For the Respondent/s : Dr. K.N. Singh, Sr. Advocate, ASG Mr. Anshuman Singh, Sr. SC, Customs Mr. Shivaditya Dhari Sinha, Advocate Mr. Alok Kumar, Advocate (In Civil Writ Jurisdiction Case No. 768 of 2021) For the Petitioner/s : Mr. Prabhat Ranjan, Advocate For the Respondent/s : Dr. K. N. Singh, ASG CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Re: CWJC No. 7682 of 2020 In the instant writ petition, petitioners have prayed for the following reliefs: "(i) Quashing of the Seizure dated 14.08.2020 (Annexure 6) corresponding to Muzaffarpur Unit Case No. 01/20-21 effected by Respondent No. 7 in exercise of powers under Section 110 of the Customs Act, 1962 whereby 21098.00 kgs of Betel Nuts along with Truck bearing Registration No. UP-31 AT - 1107 has been seized for alleged violation of Section 7, 11, 46 and 47 of the Customs Act, 1962; Section 3 (2) of Foreign Trade (Development and Regulation) Act, 1992; (ii) Appropriate direction for release of the good....
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....,030/-. On the same day, E-Way Bill was generated at about 07:18 pm with place of dispatch as Madarihat, West Bengal - 735220 while incorporating supplier GSTIN No. as 19BINPG0278G1Z3 and place of delivery as Tilak Bazar, Delhi - 110006 with GSTIN No. as 07AFLPG8787J1ZP of recipient. The valuation of the goods is Rs. 39,43,275/-, HSN Code 802 - ARECANUT and Reason for Transportation - Outward - Supply vide Annexure-4. Details of address have been shown in respect of both the petitioners. 4. The Customs officials intercepted and seized the truck bearing No. UP 31 AT 1107 in Muzaffarpur, State of Bihar. The vehicle was taken to the Customs office and the vehicle and Areca Nut goods were seized in the Customs office. For seizure of the truck and Areca Nut goods on 14.08.2020, seizure memo was drawn by the Seizing Officer, Customs (P) Division, Muzaffarpur. Description of goods and vehicle are narrated against column of Areca Nut, total 308 bags of Areca Nut (Betel Nuts) packed in 308 bags, each containing average 68.5 kgs, foreign origin, Quantity of Goods - 21,098.00 valued at Rs. 44,30,580 @ Rs. 210 P. kg. and valuation of truck is Rs. 26,50,000/- and total valuation is Rs. 70,80....
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....hers reported in (2016) 40 GSTR 141 that Panchnama document cannot be read into seizure memo. Submission of learned counsel for the respondents. 7. Learned senior counsel, Dr. K.N. Singh, ASG raised preliminary issue that the present writ petition is not maintainable since petitioners have statutory remedy of appeal before the appellate authority under Section 128 of the Act, 1962. It is further submitted that second petitioner has no locus to file writ petition along with the petitioner No. 1. In this regard, he has pointed out defect in the affidavit supporting the writ petition. 8. Learned senior counsel submitted that Assam Supari Traders case cited supra is distinguishable to the case in hand on the score that reason to believe insofar as drawing of seizure memo proceedings, it has to be read with Panchnama drawn on the same date. If the contents of the Panchnama is taken into consideration, in that event, one has to draw inference that reason to believe before drawing of seizure memo would suffice. On the other hand, in the case of Assam Supari Traders cited supra, it was not a subject matter relating to consideration of seizure memo read with Panchnama. It is furthe....
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....its Authorized Representative Cum Power of Attorney Holder Anil Kumar Yadav vs. Union of India through the Secretary, Ministry of Finance, Department of Revenue and Others reported in 2024 SCC OnLine Pat 6401 To read seizure memo read with Panchnama, he has cited the following decision : (i) Yakub Abdul Razak Memon vs. State of Maharashtra reported in (2013) 13 SCC 1. 10. Learned senior counsel for the respondents further submitted that the decision of this Court in the case of the The Commissioner of Customs (Preventive), Patna vs. Sri. Rajendra Sethiya in Mis. Appeal No. 528 of 2022 (Paragraph Nos. 7 and 13) read with Santosh Kumar Murarka vs. Union of India in CWJC No. 5427 of 2022 (Paragraph No. 7) are binding on the issue of reason to believe. He is relying in the case of Mary Pushpam vs. Telvi Curusumary and Others reported in (2024) 3 SCC 224, (Paragraph Nos. 20 and 21). For the purpose of reason to believe by the seizing officer, the other material which was taken note of by him is relating to secret information. There are contradictions on papers like place of dispatch and Way Bill and some of the sacks reveal foreign origin like Bangladesh and Guyana, therefore, ....
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....ill and in Marudhar Assam Road Lines Private Limited, there are minor discrepancies insofar as writing number of bags read with weight. Those are with reference to net, gross and, bag weight. Such minor errors cannot be the reason for drawing an inference that seized Areca Nuts are imported goods. It is also pointed out that place of dispatch mentioned in the Tax Invoice and Way Bill are not tallying is for the reasons that it depends on PIN Code of the place. In the Tax Invoice one of the place shown is as Badaitari whereas in the Way Bill it is written as Madarihat. Both would fall under one PIN Code. Distance between the aforementioned places are only 20 km and it falls under one postal PIN Code, therefore, prima facie there are no discrepancies in the documents insofar as transportation of the goods through truck as contended by the the respondents. Further submissions on behalf of the respondents 14. Learned senior counsel for the respondents countered the aforementioned contention of the learned counsel for the petitioners and submitted that second petitioner has no locus. The petitioners have not made out a case on the issue of alternative remedy available to the petit....
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....oresaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1-A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." In support of alternative remedy number of decisions cited on behalf of the respondents, the latest decision is in the case of PHR Invent Educational Society (cited supra), Para - 20. In Paragraph No. 29, principles have been laid down. Principles are that violation of non-compliance of statutory provision, violation of principle of natural justice and other criteria. For the purpose of present case, violation of statutory provision like Section 110 of the Act, 1962 has not been complied in the manner known to the law to the extent of not writing the reasons in ....
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....P-31AT-1107 Engine No 81D84478340 Chassis No. MAT466623JSE13493 Tata LPT 3118 CR BS IV 8 x 2 Truck 1 (One) Rs. 26,50,000/- Total Total Rs. 70,80,580/- (Rs. Seventy Lakh Eighty Thousand Five Hundred Eighty only Signature of Witnesses sd/- 14.08.2020 Signature/thumb impression of accused Sd/- 14.08.2020 sd/- 14.08.2020 Signature of seizing Officer Customs (P)Division, Muzaffarpur Seal" Reading of the aforementioned seizure memo dated 14.08.2020, in particularly, column number relating to reasons for seizure of the goods, it has been indicated violation of various Sections, however, merely quoting various Sections does not suffice to draw inference that there are reasons for seizure of the goods, therefore, minimal reasons were required to be written by the Seizing Officer so as to enable the petitioners to prefer effective appeal before the appellate authority under Section 128 of the Act, 1962. Further, Section 110 (1A) (1B) (1C) of the Act, 1962 has not been complied only to the extent of seizure of the vehicle in the light of Notification dated 05.02.1986. It is necessary....
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....troleum products falling under Chapter 27 of the Customs Tariff Act, 1975 (51 of 1975); [inserted vide notification No. 32/2005-Customs (NT), dated 11.04.2005] 16. Red Sander 11.04.2005] [inserted vide notification No. 32/2005-Customs (NT), dated 17. Sandalwood 07/03/2008] [Inserted vide notification No. 25/2008-Customs (NT), dated 18. Fireworks" Note: The Principal notification No. 31/86 - Customs, dated 5.02.1986 was issued vide G.S.R. 871) dated the 5.02.1986 and was subsequently amended by notification No. 42/89-Customs (NT), dated 30.06.1989; notification No. 7/93-Customs (NT) dated 25.01.1993; notification No. 10/95-Customs (NT), dated 1.03.1995; notification No. 12/96-Customs (NT), dated 11.03.1996; notification No. 72/97-Customs (NT), dated 22.12.1997; notification No. 90/98-Cus (NT), dated 12.11.1998; notification No. 20/2004-Customs (NT), dated 16.02.2004; notification No. 32/2005-Customs (NT), dated 11.04.2005; notification No. 25/2008-Customs (NT), dated 07.03.2008 & 143/2015-Customs (NT) dated 15.12.2015. Reading of the aforementioned Notification, Column No. 6, relating to Conveyance. In the present case truck is mode of Conveyance and it....
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....wer of the High Court is an effective alternative remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternative remedy arises where: (a) the writ petition has been filed for the enforcement of fundamental right protected by Part-III of the Constitution; (b) there has been violation of the principles of natural justice; Underline Supplied (c) the order or the proceedings are wholly without jurisdiction; or (d) the vires of legislation is challenged; (iv) An alternative remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution of India in an appropriate case though ordinarily; the writ petition should not be entertained when an efficacious remedy is provided by a law; (v) When a right is created by statute which itself prescribes the remedy or procedure for enforcing the right or the liability the short must be had to that particulars statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India; (vi) This rule of the exhaustion of the statutory remedies is a rule of Policy. convenience and dis....
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....the fact that whatever contents of the Panchnama cannot be read into seizure memo in the light of Notification dated 08.02.2017. It is necessary to reproduce Notification dated 08.02.2017 and it read as under: "Instruction no. 01/2017-Customs F.No. 591/04/2016-Cus (AS) Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs (Anti-Smuggling Unit) *** New Delhi, dated 8th February, 2017 To All Principal Chief Commissioners/ Chief Commissioners of Customs/Customs (Preventive), All Principal Chief Commissioners /Chief Commissioners of Customs & Central Excise All Principal Directors General / Directors General of CBEC. All Principal Commissioners/Commissioners of Customs/ Customs (Prev). All Principal Commissioners/Commissioners of Customs (Appeals) All Principal Commissioners/Commissioners of Customs & Central Excite All Principal Commissioners/Commissioners of Customs & Central Excise (Appeals). Subject: Passing of order under Section 110 of the Customs Act, 1962-reg. Madam/Sir, Attention is invited to Section 110 of the Custo....
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....any, in implementation of the aforesaid guidelines may be brought to the notice of the Board. Hindi version follows. (Rohit Anand) Under Secretary to the Government of India" 20. Reading of the aforementioned Notification, it is crystal clear that Panchnama cannot be read into seizure memo as held by the Delhi High Court. After taking note of Delhi High Court decision, the aforementioned Notification has been issued. That apart reading of both the seizure memo and Panchnama, one can draw inference that firstly seizure memo has been prepared and secondly Panchnama has been drawn, therefore, at the time of writing seizure memo, Panchnama was not written or existed. This is evident from reading of Panchnama. It is also submitted, on behalf of the respondents, that they had a secret information and on the basis of such secret information the Seizing Officer had proceeded to seize the subject matter of vehicle that suffice the reason. Secret information is only tentative when Section 110 of the Act, 1962 stipulates that reason to believe. In this backdrop, Seizing Officer cannot keep reasons in his mind and he has to disclose minimal reasons in the seizure memo. On ....