RIKHAB CHAND JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner Rikhab Chand Jain inter alia with the prayer that the adjudicatory order dated 7 -5 -1996 passed by Commissioner Customs and Central Excise, Jaipur and the judgment dated 23 -6 -2000 passed by Customs Excise & Gold (Control) Appellate Tribunal (for short -CEGAT) be set aside and further prayer has been made for issuance of writ of mandamus or writ of certiorari directing the respondents to return 294 silver ingots weighing 252.177 kgs. valued at Rs. 17,88,944/ - to the petitioner. Factual matrix of the case is that the Customs and Central Excise Officers, Pali intercepted one Maruti Van during the night intervening 26 -9 -1992 and 27 -9 -1992 at 10.00 PM. Two persons, namely Ayub Khan and Mohammad Mayas, were found occupying the van at the time of interception. On search of the Maruti van, 8 gunny cloth bags containing 294 silver chaurasas were found. The Maruti Van was taken to the Police Station, Pali. Silver chaurasas were formally recovered by the police, however, subsequently they were handed over to customs authorities. A criminal complaint for offence u/s. 135 of the Customs Act was filed against 14 persons including the present petitioner in the court of Special Magistrate, Economic Offences, Jodhpur. The learned Special Magistrate by his order dated 12 -2 -2002 discharged all the accused persons, including the present petitioner and also directed that seized silver be handed over to him, When the seized silver was not returned to the petitioner, he filed another application before the learned Special Magistrate, Jodhpur, who by order dated 7 -3 -2002 reiterated his earlier direction for handing over the seized silver chaurasas to the petitioner on furnishing suitable surety bonds and also simultaneously directed that if silver had already been got melted, cash equivalent to its price may be given to the petitioner. The Superintendent, Customs and Central Excise, Jaipur filed revision petition against the orders dated 12 -2 -2002 and 7 -3 -2002 passed by the learned Special Magistrate. This revision petition was partly allowed by Additional Sessions Judge No. 2, Jodhpur and the orders dated 12 -2 -2002 and 7 -3 -2002 directing return of the seized silver articles to the petitioner were set aside, however, the order of discharge was maintained.

(2.) SEPARATELY , the Commissioner Customs and Central Excise issued a show cause notice to the petitioner on 19 -3 -1993 as to why the seized silver be not confiscated under Section 111 of the Customs Act and penalty be not imposed on the petitioner under Section 112 of the Act. Petitioner filed reply to the show cause notice and contested the matter. However, by the impugned adjudication order dated 7 -5 -1996, Commissioner directed confiscation of the silver under Section 111 of the Act and also imposed penalty on as many as 14 persons including penalty of Rs. 50,000/ - on the present petitioner. Petitioner filed appeal against the aforesaid order before the CEGAT under Section 129A of the Act. In appeal, challenge was made by the petitioner only to the order of penalty and the order of confiscation was not assailed. Appeal of the petitioner, however, was dismissed by the Tribunal vide impugned judgment dated 23 -6 -2000.

(3.) SHRI S.R. Bajwa, learned Senior Counsel appearing for the petitioner argued that the cause of action for filing of the present writ petition arose to the petitioner only when the revision petition filed by the respondent -department was allowed in part by the Additional Sessions Judge No. 2, Jodhpur vide his judgment dated 14 -5 -2003. It is thereupon that the present writ petition was filed by the petitioner on 19 -8 -2003. It is contended that even in the writ petition filed in 2003, petitioner could question legality and validity of the confiscation order dated 7 -5 -1996 because this order suffers from numerous illegalities. Learned counsel submits that according to Section 11B of the Customs Act confiscation could be made only of such goods, which were notified by the Central Government on satisfaction that it is expedient in the public interest to take special measures for the purpose of checking illegal import, circulation or disposal of such goods. Silver at the relevant time was not notified as such. Under chapter IVA and IVB of the Act, silver was noticed under Section 123 of the Customs Act vide notification dated 8 -6 -1990, followed by a clarificatory notification dated 11 -6 -1990 from the Finance Secretary, Government of India, New Delhi saying that silver which did not bear foreign mark, was not required to be seized. In the present case, the silver that was seized did not at all bear any foreign markings. Learned counsel submitted that even otherwise, silver was seized while coming from Palanpur to Pali and since both places are situated 400 kms. inside Indian territory, therefore, the customs authorities had no jurisdiction to seize such silver. Learned counsel referred to Section 111 of the Customs Act and argued that none of the clauses from (a) to (p) thereof were attracted in the facts of the present case, therefore, the goods could not be taken to have been improperly imported and confiscation could not be justified. All these arguments were although noticed by the adjudicating authority in his order, but none of them were decided.