Madras High Court
Rajkiran Kannan vs The Principal Commissioner Of Customs on 1 February, 2024
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
W.P.Nos.30507, 31078, 31115 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2024
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.Nos.30507, 31078 and 31115 of 2023
and W.M.P.Nos.30151, 30152, 30708, 30711, 30741 and 30742 of 2023
Rajkiran Kannan ... Petitioner in W.P.30507 of 2023
Eburamusa Sherif ... Petitioner in W.P.31078 of 2023
G.Indraprasath ... Petitioner in W.P.31115 of 2023
-vs-
1.The Principal Commissioner of Customs,
Chennai (Airport)
Office of the Principal Commissioner of
Customs (Air Cargo), Chennai-I Commissionerate,
New Customs House, Meenambakkam,
Chennai - 600 016.
2.The Assistant Director of Customs,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chennai - 17.
3.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chenai - 17. ... Respondents in all WP's
1/13
https://www.mhc.tn.gov.in/judis
W.P.Nos.30507, 31078, 31115 of 2023
PRAYER in W.P.No.30507 of 2023: Writ Petition filed under Article
226 of the Constitution of India, pleased to issue a Writ of
Certiorarified Mandamus calling for records and quash the
intimation / order dated 20.05.2023 (Received on 23.05.2023) passed
by the first respondent in his proceedings DIN:
20230573MU000081850E as being illegal, ultravires the Constitution
and consequently directing the respondents to return the amount of
Rs.2,04,00,000/-.
PRAYER in W.P.No.31078 of 2023: Writ Petition filed under Article
226 of the Constitution of India, pleased to issue a Writ of
Certiorarified Mandamus calling for records and quash the
intimation / order dated 20.05.2023 (Received on 23.05.2023) passed
by the first respondent in his proceedings DIN:
20230573MU000081850E as being illegal, ultravires the Constitution
and consequently directing the respondents to return the amount of
the Indian Currency of Rs.1,24,500/- and 1689 Grams of Gold.
2/13
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W.P.Nos.30507, 31078, 31115 of 2023
PRAYER in W.P.No.31115 of 2023: Writ Petition filed under Article
226 of the Constitution of India, pleased to issue a Writ of
Certiorarified Mandamus calling for records and quash the
intimation / order dated 20.05.2023 (Received on 23.05.2023) passed
by the first respondent in his proceedings DIN:
20230573MU000081850E as being illegal, ultravires the Constitution
and consequently directing the respondents to return / release the
Indian Currency of Rs.5,88,000/-.
For Petitioner : Mr.D.Baskar
in all WP's
For Respondents : Mr.V.Sundareswaran, Sr. SC
in all WP's
**********
COMMON ORDER
In all these writ petitions, an intimation issued under Section
110(2) of the Customs Act, 1962 is assailed by the respective
https://www.mhc.tn.gov.in/judis
W.P.Nos.30507, 31078, 31115 of 2023
petitioner.
2. The case falls within a very narrow compass. Proceedings
were initiated against the respective petitioner with regard to alleged
smuggling of gold. Initially, there was arrest and remand. The
statements of persons connected with the alleged smuggling were
recorded in December and January 2022-2023. Based on a request
letter dated 15.05.2023 from the Principal Assistant Director General,
Directorate of Revenue Intelligence, the Principal Commissioner of
Customs issued the impugned intimation extending the period for
issuance of show cause notice under Section 124 of the Customs Act,
1962 (the Customs Act) by a period of six months, i.e., from
20.05.2023 to 25.11.2023.
3. Learned counsel for the petitioner invited my attention to
Section 110(2) of the Customs Act and pointed out that the provision
as it stood prior to 29.03.2018 required that sufficient cause be shown
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W.P.Nos.30507, 31078, 31115 of 2023
as a pre-condition for extension. By placing reliance on the following
judgments, learned counsel contended that Section 110(2) was
interpreted, prior to its amendment, as requiring hearing the person
affected before issuing an order of extension:
(i) M/s.Shree Gold Art Private Limited Through Mr.Manindra Samanta v.
Union of India and others W.P.(C).1166/2021, judgment dated 22.12.2023.
(ii) Maj.Dimple Singla v. Union of India, judgment dated 06.02.2008,
Punjab and Haryana High Court.
4. After the amendment, he submits that reasons for extension
are required to be recorded in writing and the person from whom
goods were seized is required to be informed. Although Section
110(2) was amended to provide that reasons in writing should be
recorded, by referring to the judgment of the Supreme Court in
Assistant Commissioner, Commercial Tax Department Works, Contract &
Leasing, Kota v. M/s.Shukla & Brothers 2010(4) SCC 785, learned
counsel submits that reasons in writing should be recorded on the
basis of materials on record.
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W.P.Nos.30507, 31078, 31115 of 2023
5. As regards the impugned order, learned counsel submits that
the reason recorded therein was that investigation is being delayed
due to key persons remaining at large, whereas no further statements
were recorded after 20.05.2023 and the same is evident from the show
cause notice issued subsequently on 24.11.2023. Since the impugned
communication was issued without objectively considering the
relevant material, he submits that the impugned communication is
liable to be interfered with.
6. Mr.V.Sundareswaran, learned senior standing counsel,
submits that the only requirements of amended Section 110(2) are
that reasons in writing should be recorded and that persons from
whom the goods were seized should be informed. According to him,
both these conditions were satisfied.
7. The case turns entirely on the interpretation of sub-section (2)
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W.P.Nos.30507, 31078, 31115 of 2023
of Section 110. The said provision is set out below:
"Where any goods are seized under sub-
section (1) and no notice in respect thereof is
given under clause (a) of section 124 within six
months of the seizure of the goods, the goods shall
be returned to the person from whose possession
they were seized:
[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 the person from whom such
goods were seized before the expiry of the period
so specified:
Provided further that where any order for
provisional release of the seized goods has been
passed under section 110A, the specified period of
six months shall not apply.] [Substituted by
Finance Act, 2018 (Act No.13 of 2018), dated
29.03.2018.]
8. The first proviso to sub-section (2) confers discretion on the
Principal Commissioner of Customs or Commissioner of Customs to
extend the period specified in sub-section (2) by a further period not
exceeding six months. The proviso also specifies the two conditions
or pre-requisites in such regard. They are:
(i) Record reasons in writing;
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W.P.Nos.30507, 31078, 31115 of 2023
(ii) Inform the persons from whom such goods were seized before the
expiry of the original six month period.
9. As regards the second condition of being informed, the
respective petitioner admits to being informed about the extension.
All that remains is to examine whether reasons were recorded in
writing. Turning to the impugned communication, in relevant part,
it is recorded therein as under:
"Whereas it appears from the facts brought
before me that the investigation into the case was
delayed due to key persons involved in the case
being at large and examination of those persons
being stalled until the late stage of investigation
and that the investigation in the case could not be
completed due to failure of key persons joining
investigations and thus bring the investigation to
its logical conclusion. A case has been made out
for grant of extension of time limit for issuance of
Show Cause Notice;
And whereas I am satisfied that further
investigation needs to be carried out in the case in
order to probe the role of the key persons involved
in this larger conspiracy to smuggle gold into
India in as much as the impugned goods are liable
to confiscation under Section 111 of the Custome
Act, 1962 read with other Acts and Rules in force
for the time being and the persons found guilty are
liable for personal penalty under Section 112 ibid
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W.P.Nos.30507, 31078, 31115 of 2023
and to bring the case to its logical conclusion;"
10. From the above extracts, it appears that the Principal
Commissioner of Customs concluded that the investigation was
delayed due to key persons, who are involved in the case, being at
large and therefore their examination being stalled. For such reason,
he also concluded that further investigation is required to be carried
out and that an extension of time is necessary. These conclusions are
said to have been reached on the basis of facts placed before the
Principal Commissioner of Customs. It certainly cannot be inferred
from the above that reasons in writing were not recorded.
11. The other aspect to be taken into account is whether the
recorded reasons are germane to the extension. Since it is recorded
therein that the investigation was delayed due to persons being at
large and that such persons are required to be examined or
questioned in relation to the case, it certainly cannot be said that the
recorded reasons are not germane to the extension.
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W.P.Nos.30507, 31078, 31115 of 2023
12. At the highest, the petitioner may be in a position to say that
sufficient reasons were not recorded. However, in exercise of
discretionary jurisdiction, it is ordinarily not appropriate to examine
the sufficiency of reasons because appellate jurisdiction is not being
exercised. Therefore, no case is made out for interference with the
impugned intimation. Since learned counsel for the petitioner
submits that the seized goods were disposed of, it is open to the
petitioner to assail such disposal in accordance with law.
13. W.P.Nos.30507, 31078 and 31115 of 2023 are disposed of on
the above terms. Consequently, W.M.P.Nos.30151, 30152, 30708,
30711, 30741 and 30742 of 2023 are closed.
01.02.2024
rna
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
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W.P.Nos.30507, 31078, 31115 of 2023
To
1.The Principal Commissioner of Customs,
Chennai (Airport)
Office of the Principal Commissioner of
Customs (Air Cargo), Chennai-I Commissionerate,
New Customs House, Meenambakkam,
Chennai - 600 016.
2.The Assistant Director of Customs,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chennai - 17.
3.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chenai - 17.
https://www.mhc.tn.gov.in/judis
W.P.Nos.30507, 31078, 31115 of 2023
SENTHILKUMAR RAMAMOORTHY,J
rna
W.P.Nos.30507, 31078 and 31115 of 2023
and W.M.P.Nos.30151, 30152, 30708,
30711, 30741 and 30742 of 2023
https://www.mhc.tn.gov.in/judis
W.P.Nos.30507, 31078, 31115 of 2023
01.02.2024
https://www.mhc.tn.gov.in/judis
