KARTHIKEYAN Vs. COLLECTOR CUSTOMS

JUDGEMENT

(1.) The petitioner is an exporter of Rose Wood Timber residing within the Corporation of Calicut. On 4-8-1969 the Central Excise Inspector, Divisional P. & T. Unit, Kozhikode, searched the residential premises of the petitioner as per an authorisation from the Assistant Collector of Central Excise, Kozhikode who is the second respondent, and recovered from his premises 89 bottles of foreign liquor, another bottle containing 4 ounces of foreign liquor, 2 sets poni transistors, 2 foreign radios, 2 binoculars and 18 empty bottles used as containers for foreign liquor along with a few documents. The petitioner was not then in the house; and the search and the recovery were made in the presence of his son. A statement was recorded from him by the Inspector on the spot; and subsequently on 8-8-1969 the petitioner also gave a statement regarding the articles seized from the premises in his possession. This was followed by the usual investigation by the Central Excise Department, and a notice Ext. P1 dated 12-1-1970 to the petitioner from the first respondent, the Collector of Customs and Central Excise, stating that it appeared to him that the articles seized were of foreign origin liable for confiscation under S.III(d) of the Customs Act, 1962 and that an offence was committed by the petitioner under S.11 of the Act read with S.3(2) of the Import and Export Control Act, 1947 and calling upon the petitioner to show cause why a penalty should not be imposed on him under S.112(b) of the Act, and why the said articles should not be confiscated under S.III(d). Ext. P1 was despatched only on 4-2-1970; and it was received by the petitioner on 10-2-1970. The petitioner submitted an explanation, Ext. P2, dated 28 2 1970, regarding possession of the above articles by him; and he also contended that, as the show-cause notice was received by him only after six months of the seizure and there was no extension of that period by the Collector, he was entitled to the return of the goods. The contention obviously is based upon the provisions of S.100 of the Customs Act. Ext. P2 was followed by a notice, Ext. P3 dated 1-4-1970, fixing the case for hearing to 29-4-1970. The petitioner by his letter Ext. P4 dated 20-4-19/0 protested to the posting of the case without deciding his claim for the return of the goods; and he also applied for a true copy of the order, if any, made by the Collector to extend the. time under S.110 of the Act. The 1st respondent, by letter Ext. P6 dated 2- 5-1970, informed the petitioner that he had extended the time for issue of the show cause notice by one month from 4-2-1970 in exercise of the powers conferred on him under S.110 of the Act. The petitioner again by his letter Ext. P7 dated 18-5-1970, applied for a true copy of the above order, to which the first respondent replied by letter, Ext. P8 dated 1-6-1970, reiterating his previous position, namely that he has on 2-2-1970 extended the time by one month from 4-2-1970. The petitioner protested to the above communication by his letter, Ext. P9 dated 5-6-70; and he again requested for a true copy of the above order. On 8-7-1970, the first respondent issued a notice Ext. P11, posting the case for hearing to 1-8-1970, and informed the petitioner that if he failed to appear with all documents and other evidence in support of his defence, the case will be considered and disposed of ex parte. Thereupon the petitioner filed this writ petition praying for a writ of mandamus or other appropriate writ or order directing the first respondent to release the goods seized from him on 4-8-1969.

(2.) There is no dispute that Ext. P 1 was despatched on 4-2-1970. On the question whether there was an extension of time as stated in Ext. P8 and the circumstances under which it was extended, the first respondent states as follows in Para.5 of his counter affidavit:

(3.) Assuming that it is the date of receipt of notice by the person concerned which is relevant, the question for consideration is whether an extension' of the period of 6 months mentioned in S.110(2) of the Act can be made by the Collector without hearing the person concerned. Counsel for the petitioner submitted that such extension can be made only on sufficient cause being shown; and that as an extension would affect the vested right of a person to get the goods released, if the show cause notice is not issued within the prescribed period, no order extending the time can be passed by the Collector without hearing the person concerned and giving him an opportunity to show cause against the extension. In support of the above contention, counsel brought to my notice a Division Bench decision of the Calcutta High Court in Charandas v. Asst. Collector of Customs ( AIR 1968 Cal. 28 ). In that case, the premises of the appellant was searched by the Customs authorities on 19-3-1963; and certain articles ware seized by them. On 18-9-1963 the Additional Collector of Customs made an ex parte order extending the period for issuing the show cause notice under S.110(2) of the Act by 4 months. Before the expiry of that period another application was made by the Investigating Officer on 3-1-1964. That application however happened to be ordered by the Collector only on 20 2 1964; and he passed another ex parte order extending the time by two months. It is not very clear from the decision what exactly was the relief sought for by the appellant in that case. The contention was that the above two orders extending the period under S.110(2) of the Act was bad, as they were passed without hearing the appellant. Sinha C. J. who delivered the judgment of the Court in dealing with the above contention stated as follows: