TaxTMI 
TaxTMI 
TaxTMI 
2026 (3) TMI 215
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....e under both the sections are distinguishable. He would submit that under Section 28 of the Customs Act, the said show cause notice has to be issued by the Customs Department, post clearance of the goods by the importer for payment of differential customs duty. Whereas, according to him, Section 124 of the Customs Act, which also provides for issuance of show cause notice, deals with cases prior to the confiscation of goods. 4. The learned counsel for the petitioner would submit that even though the petitioner may have given a letter to the respondent, waiving the issuance of show cause notice and waiving the personal hearing notice, the said letter does not have any bearing for the facts of the instant case since in the instant case, the respondent has confiscated the goods under the impugned order, for which the petitioner never agreed for waiver of show cause notice and personal hearing notice. Further, he would submit that the request of the petitioner to the respondent was only for re-export of the goods. He would also submit that a direction was also issued by this Court in W.P.No.18889 of 2024 on 05.08.2024, directing the respondent to consider the application for re-expo....
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....the competent appellate authority. Therefore, she would submit that the writ petition is not maintainable since an alternate statutory appellate remedy is available to the petitioner. 9. The learned standing counsel appearing for the respondent also drew the attention of this Court to a decision rendered by the Honourable Supreme Court in the case of Commissioner of Customs, Mumbai Vs. Virgo Steels reported in 2002 (141) E.L.T. 598 (S.C.) and would submit that as held in the said decision, even though the Customs Act provides for issuance of show cause notice, being personal to the person concerned, the same can be waived by that person. Therefore, she would submit that since the petitioner herein had waived the right to be served with a show cause notice and waived the right for personal hearing, there is no error committed by the respondent before passing the impugned order against the petitioner for which, no show cause notice was issued to the petitioner and no personal hearing was also afforded. 10. The learned standing counsel appearing for the respondent would also submit that the Madras High Court in its order dated 05.08.2024 passed in W.P.No.18889 of 2024 had also n....
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....usly refunded customs duty. However, Section 124 of the Customs Act stipulates issuance of show cause notice by the Customs Department before confiscation of goods. Any importer of the goods is always interested in early clearance of the imported goods. The importer will never agree for confiscation of the imported goods. 16. In the case on hand, the petitioner through their letter dated 14.09.2023 sent to the respondent, is said to have agreed for the waiver of show cause notice and for waiver of personal hearing notice from the respondent. Whether that waiver will hold good for passing of confiscation order by the respondent is the primary point for consideration in this writ petition. 17.The contention of the learned counsel for the petitioner is that the alleged waiver of show cause notice letter, said to have been given by the petitioner, even if it is found to be true, will not apply for passing of a confiscation order by the respondent. 18.The waiver of show cause notice letter given by the petitioner must be a voluntary, conscious and informed decision taken by the importer / petitioner herein. 19. The waiver of show cause notice cannot be given through pre-prin....
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....ces for the issuance of the waiver letter by the importer only to Section 28 of the Customs Act. 24.Section 124 of the Customs Act, 1962 mandates that a written show cause notice and a reasonable opportunity for hearing must be provided before confiscating the goods or imposing penalties, making it a mandatory procedure for safeguarding the rights of the importer/exporter that cannot be waived through pre-printed forms or signed waivers under pressure. Any adjudication made by the Customs Department for confiscation of goods based on such waivers are invalid and amounts to violation of principles of natural justice. 25. Section 124 of the Customs Act imposes a strict mandatory duty on the Customs Authorities to issue a written notice, detailing the grounds for confiscation or penalty. If a valid show cause notice is not issued in compliance with Section 124 of the Customs Act, the subsequent confiscation or penalty order would amount to a legal nullity. Whereas, Section 28 of the Customs Act, 1962 can be waived, if the person concerned, voluntarily, relinquishes their rights to it as the said notice is only for individual benefit. However, even this waiver requires a signed, ....
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.... that the ultimate test is always the same viz., "the test of prejudice or the test of fair hearing". 31.The impugned confiscation is certainly prejudicial to the interest of the petitioner as their imported goods have been confiscated and they have also been called upon to pay penalty as well. Without any show cause notice having been issued to them as contemplated under Section 124 of the Customs Act, the impugned order in original is bad in law by applying the principle of the "touch stone of prejudice". 32.The Madras High Court in Salmag Enterprises vs. Additional Commissioner of Customs (ADJ), Tuticorin reported in 2021 (378) E.L.T. 415 (Mad.) had an occasion to deal with Section 124 of the Customs Act. In a situation where the importer had sought for early clearance of the imported goods and had issued a letter to the Customs Department for waiver of show cause notice, the Madras High Court in the aforesaid decision held that show cause notice is mandatory as provided under Section 124 of the Customs Act for passing a confiscation order. The requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of the ....