MUKESH JAIN AGARWAL Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India against the respondents claiming quashment of the order of Collector, Central Excise and Customs for seizure of goods pertaining to 30.130 Kgs. of silver and currency notes in the sum of Rs. 1,45,000/ -, and quashment of further proceedings for the confiscation of the aforesaid goods and award of exemplary costs to the respondents.

(2.) THE facts leading to this petition, in short, are that petitioner No. 1 Mukesh Jain deals in the business of silver in the name and style of Suhel Metal Industries at Indore. The main business of the petitioner being melting of silver and silver ornaments to make silver slabs of a definite percentage. The petitioner No. 1 has also a shop at Bada Sarafa Indore. He is also engaged in buying and selling silver on commission basis. The father of petitioner No. 1 is petitioner No. 2 and he also deals in the business separately, Petitioner No. 9 is the son of petitioner No. 2 and is engaged in business at Agar in the name of Rajat Jewellers, Petitioner Nos. 3, 4 and 5 are agriculturists, who purchase silver through petitioner No. 9, petitioner Nos. 6,7 and 8 are also agriculturists who, according to them had given their silver ornaments for melting them and converting them into silver slabs of definite percentage.

(3.) THE petition has been resisted by the respondents on the ground that on receipt of information that Dhanya Kumar Jain and his son Mukesh Jain had received foreign marked gold biscuits and silver slabs of foreign origin and had agreed to deliver the foreign marked gold biscuits to one Ram Kumar Agarwal on 3 -4 -1989 and had delivered silver slabs to Kamal Chand Jain and Rajendra Jain, Mahesh Nagar, Indore, therefore, kept surveillance and as a result intercepted the car carrying contraband gold which was driven by Ram Kumar Agarwal. As a result of the search contraband gold was recovered and statement of Ramkumar Agarwal was recorded under Section 108 of the Customs Act, 1962. In follow up action the premises of Dhanya Kumar Jain was searched and statement of Dhanya Kumar Jain was also recorded in which he admitted to have instructed his son Mukesh Jain to cause delivery to Ramkumar Agarwal 52 gold biscuits. During the investigation search of residential premises of Dhanya Kumar Jain was also made which resulted in the recovery of 46 silver cubes weighing 30.130 Kgs. valued at Rs. 1,80,0007 - and Indian currency of Rs. 1,45,000/ -. On investigation it has been found to have been obtained by melting conversion of foreign origin silver slabs. It has further been stated that a show cause notice has been issued to petitioners Nos. 1 and 2 according to the Customs Act, 1962 on 25th September, 1989 which was received by the petitioner No. 2. The statement of Dhanya Kumar Jain recorded under Section 108 of the Customs Act itself speaks of his involvement in the smuggling activities. The involvement of petitioner Nos. 1 and 2 is evident by the confessional statement of Ramkumar Agarwal and petitioner No. 2. The search operation was conducted on 3 -4 -1989 and the notice was served on the party on 25 -9 -1989. As such the notice was given within the time limit prescribed under Section 110(2) of the Customs Act. They should have filed the reply before the authorities and exhausted the departmental remedy before approaching the Court. The other petitioners have not made any request to the authorities. Therefore, the petition be dismissed.