Syed Durvesh Moinuddin Shah vs The Superintendent Of Customs
2022 Latest Caselaw 6654 Tel

            In the High Court for the State of Telangana
                   Writ Petition No. 38674 of 2022
Between:

Syed Durvesh Moinuddin Shah
                                                        ... Petitioner
and

The Superintendent of Customs,
Air Intelligence Unit (Batch-A)
O/o. Assistant/Deputy Commissioner of Customs
Rajiv Gandhi International Airport,
Shamshabad and others
                                                      ...Respondents


Date of Judgment Pronounced: 09-12-2022

Submitted for Approval:

            HON'BLE SRI JUSTICE UJJAL BHUYAN
                                  AND
        HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
   1. Whether Reporters of Local newspapers          Yes/No
      may be allowed to see the judgment ?


   2. Whether the copies of judgment may be          Yes/No
      marked to Law Reporters/Journals

   3. Whether Their Ladyship/Lordship wish to        Yes/No
      see the fair copy of the Judgment ?

                                                __________________
                                                 UJJAL BHUYAN , J
                                   ::2::



            * HON'BLE SRI JUSTICE UJJAL BHUYAN
                                   and
         HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
                    + Writ Petition No. 38674 of 2022

                           % Dated 09.12.2022

Between:

# Syed Durvesh Moinuddin Shah
                                                          ... Petitioner
and

The Superintendent of Customs,
Air Intelligence Unit (Batch-A)
O/o. Assistant/Deputy Commissioner of Customs
Rajiv Gandhi International Airport,
Shamshabad and others
                                                        ...Respondents

! Counsel for the Petitioner:             Mr. Uzair Ahmed Khan

^ Counsel for respondents No.1 & 2: Mr. B.Narsimha Sarma

GIST:

HEAD NOTE:

? Cases cited:
      ---

::3::

THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY W.P.No. 38674 of 2022 ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)

Heard Mr. Uzair Ahmed Khan, learned counsel for the

petitioner and Mr. B.Narsimha Sarma, learned counsel for

respondents No.1 and 2.

2. Challenge made in this writ petition is to the order-in-original

dated 29.06.2022 passed by the Assistant Commissioner of

Customs, Rajiv Gandhi International Airport, Shamshabad,

Hyderabad (respondent No.2).

3. By the aforesaid order, Assistant Commissioner confiscated

foreign currency equivalent to INR 6,35,250/- seized from the

petitioner vide panchanama dated 28.01.2022 in terms of Sections

113(d), 113(e) and 113(h) of the Customs Act, 1962 (briefly 'Act of

1962' hereinafter) read with Foreign Exchange Management

(Export and Import of Currency) Regulations, 2015 made under

the Foreign Exchange Management Act, 1999.

::4::

4. By the aforesaid order, penalty of Rs.64,000/- was also

imposed upon the petitioner in terms of Section 114(i) of the Act

of 1962.

5. On a query by the Court as to why petitioner has not

preferred appeal under Section 128 of the Act of 1962 against the

order-in-original dated 29.06.2022, learned counsel for the

petitioner submits that the impugned order is in gross violation of

the principles of natural justice; no hearing was granted to the

petitioner before absolute confiscation was ordered.

6. When the attention of learned counsel for the petitioner was

drawn to paragraph 11 of the impugned order, which says that the

passenger (petitioner) in his statement dated 28.01.2022 requested

that the case may be decided on merits without issuance of show

cause notice and personal hearing, he submits that at the time of

seizure, statement of the petitioner was allegedly recorded;

petitioner was made to sign on a computer printed sheet of paper

copy of which was also not furnished to the petitioner. Thereafter,

petitioner had submitted letter to the Superintendent of Customs ::5::

on 31.01.2022 requesting him to furnish him a copy of the

statement allegedly recorded from the petitioner; further requesting

the said authority to preserve the CCTV footage from 27.01.2022

to 29.01.2022. Thereafter, petitioner sent an e-mail on 31.05.2022

requesting the Superintendent of Customs to apprise him of the

steps taken pursuant to his request made on 31.01.2022.

7. Learned counsel for the petitioner has also referred to order

dated 11.05.2022 passed by the Assistant Commissioner under the

Right to Information Act, 2005 wherein it was mentioned that no

reply dated 31.01.2022 was received but consent for waiver of show

cause notice and personal hearing was made in the statement

dated 28.01.2022 by the passenger (petitioner). By the same order,

it was stated that the passenger (petitioner) may request the

adjudicating authority for further personal hearing before

adjudication of the case.

8. On the other hand, learned counsel for respondents No.1

and 2 submits that the impugned order is an appealable order and ::6::

therefore, petitioner may file appeal before the Commissioner of

Customs under Section 128 of the Act of 1962.

9. We have heard learned counsel for the parties and perused

the materials on record.

10. Confiscation of goods attempted to be improperly exported

etc., is provided under Section 113 of the Act of 1962 and penalty

for attempt to export goods improperly is provided under

Section 114 of the aforesaid Act. However, Section 124 thereof

deals with the issue of show cause notice before confiscation of

goods etc. Section 124 of the Customs Act, 1962 reads as under:

124. Issue of show cause notice before confiscation of goods, etc.--No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person--

(a) is given a notice in [writing with the prior approval of the officer of customs not below the rank of [an Assistant Commissioner of Customs] informing] him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice ::7::

against the grounds of confiscation or imposition of penalty mentioned therein; and

(c) is given a reasonable opportunity of being heard in the matter:

Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned, be oral.

[Provided further that notwithstanding issue of notice under this section, the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed.]

11. From a perusal of the above, it is seen that no order

confiscating any goods or imposing any penalty on any person shall

be made unless the owner of the goods or such person is given a

notice in writing with the prior approval of the higher authority

informing the grounds on which it is proposed to confiscate the

goods or to impose a penalty; such person is given an opportunity

of making a representation in writing within such reasonable time

as may be specified in the notice against the grounds of

confiscation or imposition of penalty. Further, such a person must

be given a reasonable opportunity of being heard in the matter. As ::8::

per the first proviso, notice as well as the representation may at the

request of the person concerned be oral.

12. From a careful analysis of the aforesaid provision, it is clearly

discernible that the owner of the goods or such person from whom

the goods are seized may make a request to the competent

authority that the show cause notice preceding confiscation as well

as the representation to be submitted may be oral. Therefore, the

show cause notice and the response thereto may be in writing or

may be oral on request of the person concerned. Show cause

notice and representation thereto are mandatory; those can only be

oral on request of the person concerned. There is no provision for

waiver of the requirement for such show cause notice or the right

to submit representation. That apart, clause 'c' of Section 124 as

extracted above is independent of the show cause notice as well as

the right to make a representation, which mandates that before

confiscation, a reasonable opportunity of hearing must be given

either to the owner or to such person from whom the goods were

seized. Principles of natural justice and due procedure are ::9::

therefore inbuilt in Section 124 of the Act of 1962. Since

confiscation has serious consequences, the procedure prescribed

under Section 124 has to be followed.

13. In the instant case, it is evident that the procedure prescribed

has not been followed. That apart, copy of the document relied

upon by respondent No.2 against the petitioner was also not

furnished to the petitioner.

14. That being the position, we are of the view that impugned

order passed by the Assistant Commissioner is in violation of

Section 124 of the Act of 1962 as well as the principles of natural

justice.

15. It is well settled that when there is violation of the principles

of natural justice, availability of alternative remedy would be no bar

to invoke jurisdiction under Article 226 of the Constitution of

India.

16. We therefore set aside the order-in-original dated 29.06.2022

passed by respondent No.2 and remand the matter back to the file ::10::

of respondent No.2 i.e., Assistant Commissioner of Customs to

give due opportunity of hearing to the petitioner and thereafter

pass appropriate order in accordance with law. This shall be done

within a period of four weeks from the date of receipt of a copy of

this order.

17. Till such time a decision is rendered by respondent No.2-

Assistant Commissioner, the goods ordered to be confiscated shall

be construed to be under seizure and would abide by such further

order that may be passed by respondent No.2 on remand.

18. Writ Petition is accordingly allowed. No costs.

As a sequel, miscellaneous petitions, pending if any, stand

closed.

__________________ UJJAL BHUYAN, CJ

_______________________ C.V.BHASKAR REDDY, J Date: 09.12.2022 LUR