USHA ENTERPRISES MADRAS Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS writ appeal has been filed against the judgment of the learned Single Judge dismissing W. P. 1924 of 1977, filed by the petitioner. The prayer in the writ petition was to quash the order dated 8-2-1977, passed by the Government of India, in the following circumstances. On 11-11-1970, the officers of the Customs department, Madras, seized 34 bags of nutmegs without shell and 15 bags of nutmegs with shell from the petitioner in the reasonable belief that the goods were smuggled goods and were imported in contravention of the Customs Act, 1962 (for short the Act). On 28-4-1971, a show cause was issued by the Assistant Collector of Customs to one Tilakar of the petitioner's firm. Thereafter, on 24-3-1971, a notice was sent to the petitioner stating that the 49 bags of nutmegs would be sold as they were deteriorating and the sale proceeds kept in abeyance. It is admitted that on 15-6-1971, the petitioner wrote to the Assistant Collector of Customs agreeing to the goods being sold. Thereafter, on 29-6-1971, the petitioner sent a communication to the Additional Collector of Customs stating that a consignment of nutmegs had been seized from it on 11-11-1970 and that a show cause notice had been issued to Tilakar, who was described as Manager and Accountant in the letter itself and four other members. The said communication further stated that no notice had been sent either in the name of the firm or in the name of the partners of the firm and that since six months had elapsed from the date of seizure on 11-11-1970, the petitioner was entitled to the return of the goods. Thereafter, the Assistant Collector of Customs sent another show cause notice on 26-7-1971, to the petitioner. Thereafter, the Assistant Collector of Customs passed an order on 28-2-1972. The Assistant Collector of Customs found that the seized goods were not of Indian origin and are smuggled and imported into the country unauthorisedly in contravention of the Act. Accordingly, the Assistant Collector of Customs imposed a penalty of Rs. 10, 000 on the petitioner, Rs. 5000 on Tilakar and Gnanapraksaam and Rs. 2000 on Natarajan. The petitioner preferred an appeal before the Central Board of Excise and Customs. The appeal was dismissed on 31st August, 1973. The petitioner then preferred a further revision to the Government of India, which too was dismissed on 8-2-1977. It is, in these circumstances, the petitioner filed the writ petition, which, as already stated, was dismissed by the learned Single Judge and hence this appeal.

(2.) MR. K.C. Rajappa, the learned Counsel for the petitioner, raised the following contentions. Section 110(1) of the Act confers powers on the proper officer to seize any goods if he has reason to believe that such goods are liable to confiscation under the Act. Section 124 provides that before ordering confiscation of any goods or imposing any penalty on any person, the owner of the goods or such person should be given notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose the penalty and should be given a reasonable opportunity of being heard in the matter. Section 110(2) provides that 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. In this case, according to the learned Counsel though the seizure of the goods was made on 11-11-1970, the show cause notice was issued to the petitioner only on 29-6-1971 six months after the date of seizure. Consequently, the Customs authorities were bound to return the goods to the petitioner. Further, the notice dated 29-4-1971 was served only on Tilakar. Admittedly, according to the Customs authorities such notice was not served on the said Tilakar as an agent of the petitioner within the meaning of Section 147(3) of the Act. The appellate authority had found that the notice issued to Tilakar was valid under Section 229 of the Contract Act and was binding on the petitioner which finding was confirmed by the revisional authority. MR. Rajappa contended that Section 229 of the Contract Act could not be invoked by the respondents to make the show cause notice served on Tilakar binding on the petitioners. Once it was admitted by the respondents that the show cause notice was not issued under Section 147(3) of the Act, then the authorities should have further found that there was no valid notice on the petitioner and the only valid notice was the one issued after the period of six months. Consequently, the petitioner was entitled to a return of the goods. We may mention at this stage that apart from raising this technical plea that the show cause notice issued to the petitioner was beyond the period of limitation and that the show cause notice issued to Tilakar on 28-4-1971, was not binding on the petitioner, the learned Counsel for the petitioner did not canvass the correctness of the findings of the various authorities on the merits of the case.

(3.) ONCE we accept the finding of the respondents that Tilakar was admitted to be an agent of the petitioner and we further find that there was a clear admission before the learned Single Judge that Tilakar was such an agent, we have no difficulty in coming to the conclusion that the notice issued to Tilakar on 29-4-1971, was a valid notice served on the petitioner under Section 229 of the Contract Act. Section 229 of the Contract Act reads as follows :-