Delhi High Court
M/S Nabco Batteries vs Commissioner Of Central Excise on 27 May, 2015
Author: Rajiv Shakdher
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3309/2015
M/S NABCO BATTERIES ..... Petitioner
Through: Mr. Prabhat Kumar, Mr. Parvez Bashista
and Mr. R.P. Singh, Advocates
versus
COMMISSIONER OF CENTRAL EXCISE ..... Respondent
Through: Mr. Kamal Nijhawan, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 27.05.2015
1. On the previous date, I had asked Mr. Nijhawan, the learned counsel
for the respondent to take instructions in respect of documents and cheques
"resumed" by virtue of the panchnama dated 22.01.2014.
2. Mr. Nijhawan, learned counsel for the respondent says that a counter
affidavit has been filed in the matter. Based on the stand taken in the
counter affidavit Mr. Nijhawan says that the documents and the 14 cheques
referred to in Annexure A appended to the panchnama cannot be returned to
the petitioner, as they have been "seized". For this purpose, the learned
counsel relies upon Rule 24 of the Central Excise Rules, 2002 (2002 Rules)
and the provisions of Section 110 of the Customs Act, 1962 (the Customs
Act).
2.1 It is also the submission of Mr. Nijhawan that the petitioner has not
been cooperating in the investigation and therefore the delay in prosecuting
the case.
W.P.(C) 3309/2015 page 1 of 4
2.2 To be noted, show cause notice was issued in the matter on 8.07.2014.
2.3 There is also on record, as indicated above, a panchnama dated
22.01.2014. The panchnama clearly records that certain documents, which
includes 14 cheques (as detailed out in Annexure A to the panchnama) have
been "resumed".
2.4 The provisions cited by Mr.Nijhawan come into play only when there
is a "seizure" of goods. The goods, undoubtedly, as per the definition
contained in Section 2(22)(d) of the Customs Act include currency and
negotiable instruments. However, the power of seizing goods, documents
and things can only be exercised if the proper officer has reasons to believe
that the goods in issue are liable to be confiscated under the provisions of
the Customs Act. This clearly emerges upon a bare perusal of sub-section
(1) of Section 110. Furthermore, in so far as documents or things are
concerned, sub-section (3) of Section 110 makes it amply clear that they can
be seized by a proper officer, only if, he is of the opinion that they may be
useful for or relevant in proceedings under the Customs Act. No such case
has been made out by Mr Nijhawan during the course of his arguments.
There is, therefore, to my mind, a marked difference between the power of
seizure adverted to in the Customs Act as against the undefined power of
resumption, which has been exercised by the respondents in this particular
case.
2.5 However, as indicated above, there has been no seizure in this case; at
least not that of the documents and the 14 cheques referred to in Annexure A
appended to the panchnama.
3. The learned counsel for the petitioner says that he would require those
W.P.(C) 3309/2015 page 2 of 4
cheques to take suitable action qua the cheques in issue.
3.1 Having regard to the same, learned counsel for the petitioner, for the
moment, confines his prayer for release of only the 14 cheques which have
been resumed by the respondents.
3.2 I may only note, in this context, it is the submission of Mr.Nijhawan,
that out of the 14 cheques only 5 are drawn in favour of the petitioner.
Furthermore, it is stated that none of the 14 cheques bear a date. I am of the
view that none of what has been stated by Mr. Nijhawan can concern the
respondent, once it is established that cheques in issue were not seized.
Furthermore, return of cheques cannot, to my mind, stifle or impede
investigation as is sought to be portrayed by Mr. Nijhawan. In the absence
of power the respondent cannot withhold the cheques.
3.3 This apart, even if, one were to equate resumption with seizure (in so
far as documents or things are concerned) the said power has to be
exercised, with reasonable despatch. This is so as Section 110(3) of the
Customs Act does not lay down any specific time frame, for which, seizure,
can continue via-a-vis document or things.
3.4 At this juncture, I need not dilate on this aspect of the matter, as the
petitioner has not pressed for release of documents referred to in Annexure
'A' of the Panchnama.
4. In these circumstances, the respondent is directed to hand over the 14
cheques to the petitioner. The respondent will, however, before doing so
obtain self attested photocopies of the cheques from the petitioner. The
statement of the learned counsel for petitioner made before me that the
petitioner will not dispute the veracity of the said cheques if they are used as
W.P.(C) 3309/2015 page 3 of 4
relied upon documents, at any stage of proceedings by the respondent, is
also taken note of. The petitioner will be bound by the statement. The
needful will be done within two weeks from today.
5. Rejoinder, if any, be filed within four weeks.
6. List on 18.11.2015.
7. Dasti under the signatures of the Court Master.
RAJIV SHAKDHER, J
MAY 27, 2015
yg
W.P.(C) 3309/2015 page 4 of 4
