TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1285
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....Mr. Karan Malik, Adv., Mr. Rakesh Gogia, Adv., Mr. Tejasvi Kumar, Adv., Mr. Ambar Qamaruddin, AOR, Mr. Kunal Malik, AOR(NP). ORDER 1. Since the issues raised in all the captioned appeals are identical, those were taken up for hearing analogously and are being disposed of by this common order. 2. There are in all 14 appeals before us. Eleven are at the instance of the Revenue and three are at the instance of the respective assessees. Some of the appeals arise from the judgment and order passed by the Delhi High Court wherein the Revenue is the appellant whereas the other appeals arise from the judgment and order passed by the Bombay High Court wherein the assessees are in appeal before us. 3. For the sake of inconvenience, we treat C.A. No. 3489/2024 as the lead matter. 4. This appeal arises from the judgment and order passed by the High Court of Delhi, dated 04.09.2012, in the Writ Petition (Civil) No.2952/2012, by which the High Court allowed the Writ Petition, filed by the respondent herein, declaring that the effect of non-issuance of show-cause notice, under Section 124 of the Customs Act, 1962 (for short, 'the Act 1962'), within the stipulated period as prescrib....
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....ficial owner or any person holding himself out to be the importer, or any other person from whose custody such goods have been seized, on execution of an undertaking by such person that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Provided further that where it is not practicable to seize any such goods, the proper officer may serve an order on the owner of the goods or the beneficial owner or any person holding himself out to be importer, or any other person from whose custody such goods have been found, directing that such person shall not remove, part with, or otherwise deal with such goods except with the previous permission of such officer. (1-A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant consideration, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Ce....
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....l 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. (5) Where the proper officer, during any proceedings under the Act, is of the opinion that for the purposes of protecting the interest of revenue or preventing smuggling, it is necessary so to do, he may, with the approval of the Principal Commissioner of Customs or Commissioner of Customs, by order in writing, provisionally attach any bank account for a period not exceeding six months: Provided that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend such period to a further period not exceeding six months and inform such extension of time to the person whose bank account is provisionally attached, before the expiry of the period so specified." 9. The High Court, thereafter, looked into Section 110A of the Act, 1962, which reads thus: "110-A. Provisional release of goods, documents and things seized or bank account provisionally attached p....
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.... returned to the person from whose possession they were seized" (apparent from a combined reading of Section 110 (2) and its proviso). The corollary is not that the Customs authorities lose jurisdiction to issue show cause notice. 10. Now, such being the case, the question is if the customs authorities accede to a request to release the goods, under Section 110-A, would such event absolve or override the operation of Section 110 (2). It is to assert such a proposition that the respondents rely on the judgment of the Bombay High Court in Jayant Hansraj Shah. There, the request for release had been made within the period; however, the extended period of six months had not expired. The Court, in that context, ruled that: "9. Under Section 110-A there is a power to provisionally release the seized goods pending order of adjudication on taking a bond in a proper form with security and conditions as the Commissioner of Customs may require. It is, therefore, clear that from the date of seizure ti11 the order of adjudication the Commissioner of Customs has the power to release the goods provisionally. This power was exercised. The petitioner accepted this order of provisi....
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....ed. The Bombay view, expressed in Jayant Hansraj Shah cannot be divorced from its context, and any effort to say that release under Section 110A would extinguish the operation of the consequence (of not issuing show cause notice, within the statutory period) spelt out in Section 110 (2) would be contrary to the plain meaning and intendment of the statute. This is because Section 110-A is by way of an interim order, enabling release of goods, (for instance, where they are fast moving, or perishable). The existence of such power does not in any way impede or limit the operation of the mandatory provision of Section 110 (2), particularly the time limit for issuance of show cause notice, in so far as it relates to the consequence of statutory dissolution of the seizure. There are no internal indications in Section 110-A that the amplitude of Section 110 (2) is curtailed, or the effect of the consequence (of transgressing the time limit, i.e statutory lifting of the seizure) being overborne, by use of devices such as a non-obstante clause or words such as "Nothing in Subsection (2) of Section 110 shall operate in the case where an order is made under this Section). 12. It is we....
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....e rendered the proceedings to have been lapsed. 13. In such circumstances, referred to above, the Union of India is here before this Court with the present appeal. 14. We heard Ms. Nisha Bagchi, the learned Senior Counsel appearing for the Union of India. 15. None present on behalf of the respondent (original writ petitioner). 16. We take notice of the fact that before the Delhi High Court reliance was sought to be placed by the revenue on one decision of the Bombay High Court in the case of Jayant Hansraj Shah v. Union of India, reported in 2008 (229) E.L.T. 339 (Bom.). In the said decision, the Bombay High Court took the view that if there is a provisional release of the seized goods, in exercise of powers under Section 110A of the Act, 1962, then, in such circumstances, the period during which the seized goods remains provisionally released, has to be excluded for the purpose of calculating the limitation prescribed under Section 110(2) of the Act, 1962. In other words, the argument of the Revenue before the High Court, relying on the Bombay High Court's decision, was that whenever the power to issue show-cause notice is preserved and a request is made to release the....
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....d that in respect of the seized car, there is neither any notice under clause (a) of section 124 issued to the respondent within six months of the seizure nor the period of six months ever came to be extended for a further period of six months. In the absence of there being any notice as required by the first proviso even within the extended period upto one year, the consequence that ought to follow is release of the seized car. 20. It would be apposite or rather very relevant to state at this stage that having realised this difficulty, the legislature ultimately thought fit to enact the second proviso to Sub-section (2) of Section 110 of the Act, 1962. 21. We, however, must make a reference to the second proviso to sub-section (2) of Section 110 of the said Act. The first and the second proviso was substituted with effect from March 29, 2018. 22. The Finance Bill, 2018 reads thus: - "The Finance Bill, 2018 (As Introduced in Lok Sabha) Chapter IV Indirect Taxes Customs Notes on clauses Clause 90 of the bill seeks to amend section 110 of the Customs Act so as to give power to extend the period for issuing show-c....