Madras High Court
K.H Mohamed Ismail (Alias) vs The Additional Commissioner Of ... on 8 September, 2021
W.P.No.5028 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :08.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.5028 of 2017
and
W.M.P.Nos.5313&5314 of 2017
K.H Mohamed Ismail (alias)
Kose Hajamohideen Mohamed Ismail ...Petitioner
Vs
The Additional Commissioner of Customs(Airport)
Office of the Additional Commissioner of Customs (Airport)
Room No.311, 3rd Floor,
“New Customs House”
Meenambakkam, Chennai- 600 027. ... Respondent
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India to issue of Writ of Prohibition, forbearing the respondent from any
manner proceeding with the adjudication proceedings in
F.No.OS.No.1366/2015-AIU-AIR, without issuing written Show Cause
Notice under Section 124 of the Customs Act, to the petitioner.
(Prayer amended as per order dated 17.04.2017 in W.M.P.No.10010 of 2017
in W.P.No.5028 of 2017)
1/8
https://www.mhc.tn.gov.in/judis/
W.P.No.5028 of 2017
For Petitioner : Mr.N.Murali Kumaran
For M/s.MCGAN LAW FIRM
For Respondent : Mr.T.R.Senthil Kumar
Senior Standing counsel
[For Customs]
ORDER
The Amended prayer in the Writ Petition is to forbear the respondent
from any manner proceeding with the adjudication proceedings in
F.No.OS.No.1366/2015-AIU-AIR, without issuing written Show Cause
Notice under Section 124 of the Customs Act [hereinafter referred to as the
'Act'] to the petitioner.
2. The facts in nutshell are that on 23.12.2015, the petitioner arrived
to Chennai Airport and the Gold metal in his possession was seized by the
Customs Authorities. On the same date, the respondent contends that the
petitioner / passenger has given in writing for waiver of Show Cause Notice
to be issued by the Customs Department under Section 124 of the Customs
Act. Based on the letter of waiver of Show Cause Notice given in writing by
the petitioner / passenger, the Department contended that Show Cause
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W.P.No.5028 of 2017
Notice need not be issued in the case of the petitioner. The request of the
petitioner for release of the gold was also rejected, as he has not declared
under Section 77 of the Act. The petitioner filed Writ Petition in
W.P.No.1142 of 2016 with a prayer to release of gold under Section 110 of
the Customs Act. The High Court passed an order on 03.02.2016, directing
the respondent to complete the adjudication within a period of 12 weeks and
to decide the release of gold under Section 110 of the Act. On 15.03.2016,
the petitioner was called upon for Personal Hearing and the writ petitioner
again filed the second Writ petition in W.P. No.12123 of 2016, with the
same request to release the gold under Section 110 of the Act. The High
Court though not passed any interim order orally, instructed the Counsel not
to proceed with the adjudication. At that point of time, the Writ petitioner
filed third Writ Petition in W.P.No.41041 of 2016, to quash the proceedings
initiated by the respondent to auction the seized gold metals. The High
Court passed an order in the said Writ petition in W.P.No.41041 of 2016,
considering all the grounds raised by the petitioner including the objection
raised by the petitioner that the adjudication cannot be proceeded without
issuing the Show Cause Notice as contemplated under Section 124 of the
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W.P.No.5028 of 2017
Act. The relevant paragraph of the said judgment in W.P.No.41041 of 2016
dated 20.12.2016 are extracted hereunder:
“8.It is in these circumstances that the submission made on behalf of
the petitioner is, that, not only, is the impugned order factually erroneous,
but is also, contrary to law as there can be no confiscation of the goods,
i.e., gold bars without an adjudication order. It is further argued by the
learned counsel for the petitioner that since no show cause notice was
issued within the period of six months, as is the requirement under Section
124 (a) of the Act, the seized goods, i.e., the gold bars are required to be
released unconditionally to the petitioner under provisions of Section 110
(2) of the Act.”
3. Considering the grounds raised by the petitioner regarding the
letter of waiver given by the petitioner in the Airport for issuing Show
Cause Notice, this Court passed the order as under:
“16.Accordingly, the communication dated 10.11.2016 is quashed.
Respondents are, however, given liberty to conclude the adjudication with
due expedition, though, not later than four (4) weeks from the date of
receipt of a copy of this order. The respondents will, however, release the
seized goods i.e., the gold bars to the petitioner on a bank guarantee being
furnished, equivalent to 50% of the value of the seized goods, as indicated
in the communication dated 10.11.2016.”
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W.P.No.5028 of 2017
4. Thus, the petitioner raised the point of non-issuance of Show
Cause Notice under Section 124 of the Act in the earlier writ petition and
the said issue was elaborately considered by this Court and the relief was
granted in favour of the petitioner. Pursuant to the orders passed by this
Court, the petitioner furnished 50% of the Bank Guarantee and seized gold
metals were released.
5. Under these circumstances, the present Writ petition is filed again
on the ground that the adjudications are to be deferred on the ground of non-
issuance of Show Cause Notice under Section 124 of the Customs Act to the
petitioner.
6. The learned Senior Standing Counsel contended that the
respondent had followed the procedures as contemplated under the
provisions of the Act as well as the Circulars issued by the Ministry. The
Writ petitioner has already filed three petitions and the present writ petition
is the fourth writ petition. The adjudication is stalled one way or other,
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W.P.No.5028 of 2017
despite the fact that the seized gold metals were already released. It is
brought to the notice of this Court that five Personal Hearings were already
granted to the writ petitioner and the adjudication is in progress. Thus, the
Writ petition is to be rejected.
7. Under these circumstances, this Court is of the considered opinion
that the ground raised in the present Writ Petition regarding the issuance of
Show Cause Notice under section 124 of the Customs Act was adjudicated
by this Court elaborately in W.P.No.41041 of 2016 and a finding was also
given. This High Court has granted relief in favour of the petitioner and
pursuant to the directions issued by this Court, the petitioner also furnished
Bank Guarantee and accordingly, the entire seized gold metals were
released by the authorities. This being the factum, it became unnecessary at
this juncture to adjudicate the validity of the waiver letter given by the
petitioner in the Airport at the time of seizure of gold and further, stall the
adjudication process merely on that ground. Since the said ground was
adjudicated by this Court and the relief was granted to the Writ Petitioner
and the directions were implemented by the authorities, there is no other
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W.P.No.5028 of 2017
reason whatsoever to prolong the matter in further. This apart, the
adjudication process is also in progress and the petitioner is directed to co-
operate for the complete adjudication of the issues by availing the
opportunities to be provided in the manner known to law. The respondent is
directed to expedite the adjudication and conclude the same at the earliest
possible time.
8. With these observations, the Writ Petition stands disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
08.09.2021
Speaking order/Non-speaking order
Internet: Yes/No
Index : Yes/No
kak/nti
To
The Additional Commissioner of Customs(Airport)
Office of the Additional Commissioner of Customs (Airport)
Room No.311, 3rd Floor,
“New Customs House”
Meenambakkam, Chennai- 600 027.
https://www.mhc.tn.gov.in/judis/
W.P.No.5028 of 2017
S.M.SUBRAMANIAM, J.
Kak
W.P.No.5028 of 2017
08.09.2021
https://www.mhc.tn.gov.in/judis/
