Patna High Court
Sukhdeo Singh vs The Union Of India on 5 December, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7999 of 2020
======================================================
1. Sukhdeo Singh Son of Dinbag Singh Resident of Nanakpur, Mitauli, Kheri,
Mitauli, P.S.- Mitauli, District Kheri, Uttar Pradesh.
2. Marudhar Assam Road Lines Pvt. Ltd. Through its Director Govind Sarda,
aged about 25 years, Male, Son of Daulal Sarda, resident of Uttarayan Villa,
B R P Road, Kumar Para, P.S.- Bharauli Mukh, District- Guwahati.
... ... Petitioner/s
Versus
1. The Union of India Through Commissioner of Customs (Preventive), 5th
Floor, Birchand Patel Path, Patna, Bihar.
2. The Additional Commissioner cum Adjudicating Authority Customs (Pre-
ventive), 5th Floor, Central Revenue Building, Birchand Patel Path, Patna,
Bihar.
3. The Assistant Commissioner of Customs (P) Division Muzaffarpur, Im-
lichatti, District- Muzaffarpur, Bihar.
4. The Inspector of Customs Cum the Seizing Officer Customs (P) Division,
Muzaffarpur, District- Muzaffarpur, Bihar.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3765 of 2020
======================================================
1. Bharat Trading Company having its Registered Office at Village Krishnai
Bazar, Rakesh Cabin, P.S. Krishnai, District Goalpara, Assam, 783120
through its Authorized Signatory Rakesh Nath Tiwari, Male, aged about 49
years, son of Sri Lal Ji Tiwari, resident of House No. 516K, Baraha Kalan,
P.S. Baraha Kalan, District Allahabad (Uttar Pradesh).
2. Assam Delhi Logistic having its Registered Office at 03, Village/ Town
Roumari, Baksa, P.S. Goreswar, District Roumari, Assam through its Autho-
rized Signatory Rakesh Nath Tiwari, Male, aged about 49 years, son of Sri
Lal Ji Tiwari, resident of House No. 516K, Baraha Kalan, P.S. Baraha Kalan,
District Allahabad (Uttar Pradesh).
... ... Petitioner/s
Versus
1. The Union of India through Chief Commissioner, Customs, Central Revenue
Building, Birchand Patel, Patna, Bihar.
2. The Commissioner of Customs (Preventive), 5th Floor, Central Revenue
Building, Birchand Patel, Patna, Bihar.
3. The Additional Commissioner of Customs (Preventive), 5th Floor, Central
Revenue Building, Birchand Patel, Patna, Bihar.
4. The Assistant Commissioner, Customs (Preventive), Division Forbishganj,
District Araria, Bihar.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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5. The Inspector cum Seizing Officer, Customs (P), Forbishganj, District For-
bishganj, District Araria, Bihar.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7682 of 2020
======================================================
1. Krishna Kali Traders through its Proprietor Bijay Ghosh, aged about 39
years, Male, Son of Sri Santosh Ghosh, resident of Village Paschim Salku-
mar, Badaitari, Madarihat, Jalpaiguri, P.S. Jalpaiguri, District Jalpaiguri,
West Bengal.
2. M/s Nirmal Kumar Mahavir Kumar, through its Proprietor Rajendra Kumar
Golcha, aged about 54 years, Male, son of Sri Keshari Chand Golcha,
2285/27, Gali Hinga Beg, Khari Baoli, P.S. Tilak Bazar, New Delhi. 110006.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Finance, Government
of India, New Delhi.
2. The Chairman, Central Board of Excise and Customs, North Block, Secre-
tariat Building, New Delhi.
3. The Chief Vigilance Officer, Central Board of Excise and Customs, New
Delhi.
4. The Commissioner of Customs (Preventive), 5th Floor, Central Revenue
Building, Birchand Patel Path, Patna, Bihar.
5. The Additional Commissioner cum Adjudicating Authority, Customs (Pre-
ventive), 5th Floor, Central Revenue Building, Birchand Patel Path, Patna,
Bihar.
6. The Assistant Commissioner of Cutoms (Farbishganj), P. Division, Muzaf-
farpur, Imlichatti, District Muzaffarpur, Bihar.
7. The Inspector of Customs cum the Seizing Officer, Customs (P) Division,
Muzaffarpur, District Muzaffarpur, Bihar.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 768 of 2021
======================================================
Ashish Sharma Son of Sri Rajendra Prasad Sharma Resident of 56, Gupta
Colony, P.P. Nagar, P.S.- Transport Nagar, District Meeruth, Uttar Pradesh.
... ... Petitioner/s
Versus
1. The Union of India through the Chief Commissioner of Customs Central
Revenue Building, Birchand Patel Path, Patna, Bihar.
2. The Commissioner, Customs, (Preventive) Central Revenue Building, Birc-
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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hand Patel Path, Patna, Bihar.
3. The Additional Commissioner cum Adjudicating Authority, Office of the
Commissioner of Customs (Preventive), 5th Floor, Central Revenue Build-
ing, Birchand Patel Path, Patna, Bihar.
4. The Assistant Commissioner of Customs (Preventive) Division Farbishganj,
Bihar.
5. The Inspector cum Seizing Officer, Customs (Preventive) Division Farbish-
ganj, Bihar.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 7999 of 2020)
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
For the Respondent/s : Dr. K.N.Singh, ASG
(In Civil Writ Jurisdiction Case No. 3765 of 2020)
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
For the Respondent/s : Mr. S.D.Sanjay, ADSG
(In Civil Writ Jurisdiction Case No. 7682 of 2020)
For the Petitioner/s : Mr. Prabhat Ranjan Dwivedi, Advocate
Mr. Chandan Kumar, Advocate
Mr. Ansh Prasad, Advocate
For the Respondent/s : Dr. K.N. Singh, Sr. Advocate, ASG
Mr. Anshuman Singh, Sr. SC, Customs
Mr. Shivaditya Dhari Sinha, Advocate
Mr. Alok Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 768 of 2021)
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
For the Respondent/s : Dr. K. N. Singh, ASG
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 05-12-2024
Re: CWJC No. 7682 of 2020
In the instant writ petition, petitioners have prayed for
the following reliefs:
"(i) Quashing of the Seizure
dated 14.08.2020 (Annexure 6)
corresponding to Muzaffarpur Unit Case
No. 01/20-21 effected by Respondent No. 7
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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in exercise of powers under Section 110 of
the Customs Act, 1962 whereby 21098.00
kgs of Betel Nuts along with Truck bearing
Registration No. UP-31 AT - 1107 has
been seized for alleged violation of Section
7, 11, 46 and 47 of the Customs Act, 1962;
Section 3 (2) of Foreign Trade
(Development and Regulation) Act, 1992;
(ii) Appropriate direction for
release of the goods provisionally during
the pendency of the instant Writ petition to
the petitioners; for which, an application
for provisional release has already been
filed before the competent authority on
31.08.2020
(Annexure 13);
(iii) Referring the matter to the
Vigilance Organization for Central Board
of Indirect Taxes and Customs for
conducting a free and fair investigation in
to the manner in which the present seizure
has been effect; and
(iv) Restraining the Respondents
from coercing the petitioners in the name of
investigation pursuant to the impugned
seizure dated 14.08.2020.”
2. During pendency of the present writ petition,
petitioners have filed applications insofar as challenging
subsequent action of the respondents by filing Interlocutory
Applications i.e. I.A. No. 1 of 2021 and I.A. No. 2 of 2021.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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Subsequent to the seizure memo and Panchnama, whatever the
action taken by the official respondents cannot be adjudicated in
the present case, for the reasons that petitioners have certain
efficacious remedy available with them.
3. Brief facts of the case are that both the petitioners are
into Areca Nuts business. First petitioner is trading in Areca Nuts
business with the title of M/s Krishna Kali Traders, Paschim
Salkumar/Badaitari/Falakata/Alipurduar, West Bengal and second
petitioner is trading in Areca Nuts in the name of M/s Nirmal
Kumar Mahavir Kumar, New Delhi 110006. M/s Nirmal Kumar
Mahavir Kumar purchased Areca Nuts of 21,700 kg and its value
is a sum of Rs. 39,43,275/- from the first petitioner on 12.08.2020
vide Tax Invoice (Annexure – 3). The bank details of the first
petitioner is forthcoming in the Tax Invoice. Description of goods
indicated in the Tax Invoice are 280 bags of Areca Nuts, Per Bag
71 Kg, Gross Weight 19,880 kg, Net Weight is 19,600 kg plus 30
bags of 71 Kg each. Total 21,700 Kg. For transportation of the
aforementioned Areca Nuts, first petitioner approached Marudhar
Assam Road Lines Private Limited and booked for transportation
of goods in favour of second petitioner on 12.08.2020 in which it
is mentioned as Paschim Salkumar (Falakata) to Delhi. Document
of transportation of goods refers to GSTIN numbers of both the
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parties. Number of bags i.e. 310, Waybill Number has been
indicated. Actual weight written as 21,700, Weight Charged
22010. Valuation has been indicated as 39,43,275/- Freight
charges mentioned as 66,030/-. On the same day, E – Way Bill was
generated at about 07:18 pm with place of dispatch as Madarihat,
West Bengal – 735220 while incorporating supplier GSTIN No. as
19BINPG0278G1Z3 and place of delivery as Tilak Bazar, Delhi –
110006 with GSTIN No. as 07AFLPG8787J1ZP of recipient. The
valuation of the goods is Rs. 39,43,275/-, HSN Code 802 –
ARECANUT and Reason for Transportation – Outward – Supply
vide Annexure – 4. Details of address have been shown in respect
of both the petitioners.
4. The Customs officials intercepted and seized the
truck bearing No. UP 31 AT 1107 in Muzaffarpur, State of Bihar.
The vehicle was taken to the Customs office and the vehicle and
Areca Nut goods were seized in the Customs office. For seizure of
the truck and Areca Nut goods on 14.08.2020, seizure memo was
drawn by the Seizing Officer, Customs (P) Division, Muzaffarpur.
Description of goods and vehicle are narrated against column of
Areca Nut, total 308 bags of Areca Nut (Betel Nuts) packed in 308
bags, each containing average 68.5 kgs, foreign origin, Quantity
of Goods – 21,098.00 valued at Rs. 44,30,580 @ Rs. 210 P. kg.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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and valuation of truck is Rs. 26,50,000/- and total valuation is Rs.
70,80,580/- (Rs. Seventy Lakh Eighty Thousand Five Hundred
Eighty Only). The Seizure Officer, Customs (P) Division,
Muzaffarpur has undertaken the exercise of preparing Panchnama
(Annexure B vide counter affidavit on behalf of respondent Nos. 1
to 7). The subsequent events like summon issued under Section
108 of the Customs Act, 1962 (hereinafter referred to as ‘the Act,
1962), representation for provisionally release of the goods by the
first petitioner, reminder and other events are not relevant to the
case in hand, for the reasons that core issue involved in the present
lis is whether seizure memo under Section 110 of the Act, 1962 is
in accordance with the aforementioned provision or not read with
Panchnama drawn on 14.08.2020. Further is there compliance to
Section 110 (1A), (1B) and (1C) in respect of seizure of truck
bearing No. UP 31 AT 1107 or not?
Submission of learned counsel for the petitioners
5. Learned counsel for the petitioners submitted that the
seizure memo is not in accordance with law and the matter is
squarely covered by Co-ordinate Bench decision in the case of
Assam Supari Traders, through its Authorized Representative
Cum Power of Attorney Holder Anil Kumar Yadav vs. Union of
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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India through the Secretary, Ministry of Finance, Department
of Revenue and Others reported in 2024 SCC OnLine Pat 6401.
6. Learned counsel for the petitioners further submitted
that respondent – Customs official has failed to comply Section
110 (1A), (1B), (1C) of the Act, 1962 insofar as drawing inventory
conveyance (truck) and take certification from the Magistrate,
therefore, on legal contentions, petitioners need not exhaust
alternative remedy and seizure of memo read with Panchnama, it
is evident that Panchnama was drawn subsequent to drawing up
of seizure memo in view of the specific words narrated in the
Panchnama relating to seizure memo. Petitioners are relying on
Notification dated 05.02.1986 and in the notification, Item No. 6
relates to Conveyance, therefore, for the purpose of compliance of
Section 110 (1A), (1B), (1C) of the Act, 1962 , Customs Officials
have failed to follow the aforementioned provisions read with
Notification dated 05.02.1986. Learned counsel for the petitioners
relied on Circular dated 08.02.2017 and it was issued pursuant to
Delhi High Court Judgement in the case of Worldline Tradex P.
Ltd vs. Commissioner of Customs and Others reported in (2016)
40 GSTR 141 that Panchnama document cannot be read into
seizure memo.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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Submission of learned counsel for the respondents.
7. Learned senior counsel, Dr. K.N. Singh, ASG raised
preliminary issue that the present writ petition is not maintainable
since petitioners have statutory remedy of appeal before the
appellate authority under Section 128 of the Act, 1962. It is further
submitted that second petitioner has no locus to file writ petition
along with the petitioner No. 1. In this regard, he has pointed out
defect in the affidavit supporting the writ petition.
8. Learned senior counsel submitted that Assam Supari
Traders case cited supra is distinguishable to the case in hand on
the score that reason to believe insofar as drawing of seizure
memo proceedings, it has to be read with Panchnama drawn on
the same date. If the contents of the Panchnama is taken into
consideration, in that event, one has to draw inference that reason
to believe before drawing of seizure memo would suffice. On the
other hand, in the case of Assam Supari Traders cited supra, it
was not a subject matter relating to consideration of seizure memo
read with Panchnama. It is further submitted that in the seizure
memo dated 14.08.2020 as against the column and reasons for
seizure of goods it is mentioned that there are violations of
Sections, 7, 11, 46 and 47 of the Act, 1962 read with Section 3 (2)
of Foreign Trade (Development and Regulation) Act, 1992 and
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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Government of India, Ministry of Finance issued under Section
110 of the Act, 1962, Case No. as 01/20-21 dated 14.08.2020.
Further, learned senior counsel distinguished with reference to
identical provisions like PMLA, IPC, Income Tax Act taken note
of in Assam Supari Traders case cited supra are distinguishable
and it depends on circumstances. Under the Customs Act, 1962, at
once seizing officer cannot draw an inference whether seized
goods are foreign origin or local or country made, therefore,
contents of Panchnama would suffice in the present case to draw
an inference that reason to believe insofar as seizure of memo.
9. Learned senior counsel for the respondents cited the
following decisions on the issue of alternative remedy read with
Section 128 of the Customs Act, 1962.
(i) State of Maharashtra vs. Greatship (India)
reported in (2022) 17 SCC 332.
(ii) PHR Invent Educational Society vs. UCO
Bank and Others reported in 2024 INSC 297 (Civil Appeal
No. 4845 of 2024).
(iii) State of U.P. vs. Kay Pan Fragrance (P)
Ltd. reported in (2020) 5 SCC 811.
(iv) Mary Pushpam vs. Telvi Curusumary
reported in (2024) 3 SCC 224.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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(v) Angou Golmei vs. Union of India reported in
1994 SCC Online Pat 154.
(vi) Godrej Sara Lee vs. E&TOCAA reported in
2023 SCC OnLine SC 95.
On the issue of reason to believe, learned senior counsel
for the respondents cited the following decisions :
(i) Tata Chemicals Ltd. vs. Commr. Of Customs
reported in (2015) 11 SCC 628.
(ii) State of Gujarat vs. Mohanlal Jitamalji
Porwal and Another, reported in AIR 1987 SC 1321.
(iii) Directorate of Revenue vs. Mohd. Nisar
Holia reported in (2008) 2 SCC 370.
(iv) Noor Aga vs. State of Punjab reported in
(2008) 16 SCC 417.
(v) Bikaner-Assam Road Lines India Limited vs.
Union of India reported in 1999 SCC OnLine Pat 812.
(vi) Indru Ramchand Bharvani vs. Union of
India reported in (1988) 4 SCC 1.
(vii) M.A. Rasheed vs. State of Kerala reported
in (1974) 2 SCC 687.
(viii) Assam Supari Traders, through its
Authorized Representative Cum Power of Attorney Holder
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
12/30Anil Kumar Yadav vs. Union of India through the
Secretary, Ministry of Finance, Department of Revenue
and Others reported in 2024 SCC OnLine Pat 6401
To read seizure memo read with Panchnama, he has
cited the following decision :
(i) Yakub Abdul Razak Memon vs. State of
Maharashtra reported in (2013) 13 SCC 1.
10. Learned senior counsel for the respondents further
submitted that the decision of this Court in the case of the The
Commissioner of Customs (Preventive), Patna vs. Sri. Rajendra
Sethiya in Mis. Appeal No. 528 of 2022 (Paragraph Nos. 7 and
13) read with Santosh Kumar Murarka vs. Union of India in
CWJC No. 5427 of 2022 (Paragraph No. 7) are binding on the
issue of reason to believe. He is relying in the case of Mary
Pushpam vs. Telvi Curusumary and Others reported in (2024) 3
SCC 224, (Paragraph Nos. 20 and 21). For the purpose of reason
to believe by the seizing officer, the other material which was
taken note of by him is relating to secret information. There are
contradictions on papers like place of dispatch and Way Bill and
some of the sacks reveal foreign origin like Bangladesh and
Guyana, therefore, the aforementioned details suffice.
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Reply of petitioners’ counsel
11. The petitioners’ counsel in reply to the respondents
submission submitted that second petitioner has a locus insofar as
challenging the seizure memo in the light of the fact that he had
purchased the Areca Nut from the first petitioner as is evident
from the Tax Invoice, E-Way Bill, Marudhar Assam Road Lines
Private Limited dispatch of goods notes/invoice. There is error
crept in the affidavit in not mentioning affidavit sworn on behalf
of the second petitioner by the first petitioner and it is bona fide
mistake. On this score, second petitioner’s locus standi cannot be
turndown.
12. Learned counsel for the petitioners submitted that
petitioners have alternative remedy under Section 128 of the Act,
1962 as contended by the respondents, at the same time it goes to
the root of the matter to the extent that Seizing Officer has not
proceeded in accordance with Section 110 of the Act, 1962. He
has to assign the reason for seizure of the goods as well as vehicle.
Perusal of seizure memo read with Panchnama, it is evident that
seizure memo was drawn at first instance, thereafter, Panchnama
has been written even though date of drawing seizure memo is
14.08.2020. It is also submitted that seizure memo proceedings
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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and drawing up of Panchnama are entirely different proceedings.
Therefore, drawing up of seizure memo without assigning
reasons, one has to draw inference that there is violation of
principle of natural justice. In such circumstances, time and again
Courts have held that if there is any violation of statutory rules or
violation of principle of natural justice, in such circumstances, the
Court can interfere without resorting the petitioner to avail the
alternative remedy. On this issue, learned counsel for the
petitioners relied on Godrej Sara Lee Ltd. vs. Excise and
Taxation Officer-cum- Assessing Authority and Others reported
in (2023) 109 GSTR 402 and PHR Invent Educational Society
vs. Uco bank and others reported in 2024 INSC 297, Paragraph
No. 29.
13. Learned counsel for the petitioners further submitted
that there are no discrepancies in the documents as argued on
behalf of the respondents’ counsel. He has pointed out Tax Invoice
in which GSTIN No. 19BINPG0278G1Z3 and GSTIN No.
07AFLPG8787J1ZP are reflected of both the petitioners.
Similarly, in other documents like E-Way Bill and in Marudhar
Assam Road Lines Private Limited, there are minor discrepancies
insofar as writing number of bags read with weight. Those are
with reference to net, gross and, bag weight. Such minor errors
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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cannot be the reason for drawing an inference that seized Areca
Nuts are imported goods. It is also pointed out that place of
dispatch mentioned in the Tax Invoice and Way Bill are not
tallying is for the reasons that it depends on PIN Code of the
place. In the Tax Invoice one of the place shown is as Badaitari
whereas in the Way Bill it is written as Madarihat. Both would
fall under one PIN Code. Distance between the aforementioned
places are only 20 km and it falls under one postal PIN Code,
therefore, prima facie there are no discrepancies in the documents
insofar as transportation of the goods through truck as contended
by the the respondents.
Further submissions on behalf of the respondents
14. Learned senior counsel for the respondents
countered the aforementioned contention of the learned counsel
for the petitioners and submitted that second petitioner has no
locus. The petitioners have not made out a case on the issue of
alternative remedy available to the petitioners under Section 128.
Further insofar as Areca Nut goods is concerned Section 110 (1A),
(1B), (1C) of the Act, 1962 are not attracted.
15. Heard learned counsels for the respective parties.
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Analysis
16. On analysis of respective submissions of the learned
counsels, following issues are to be considered :
(i) Whether second petitioner has locus in filing
the writ petition or not?
(ii) Whether petitioners were required to exhaust
alternative remedy under Section 128 of the Act, 1962 or
not?
(iii) Whether seizure memo is to be read with
Panchnama to draw inference that contents of Panchnama
are the reasons for drawing up seizure memo or not?
(iv) Whether reasons to believe under Section 110
of the Act, 1962 is complied by the Seizing Officer or not?
(v) Whether Section 110 (1A), (1B), (1C) of the
Act, 1962 is mandatory insofar as seizing the truck bearing
No. UP 31 AT 1107 or not?
17. The second petitioner has a locus to assail the
seizure memo dated 14.08.2020 along with the first petitioner for
the reasons that there were transactions among the petitioners as is
evident from Tax Invoice, Transportation Note and Way Bill.
There is minute error committed by the first petitioner in his
affidavit supporting writ petition to the extent in not mentioning in
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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the affidavit that supporting affidavit is on behalf of second
petitioner, first petitioner is swearing the affidavit on his own
behalf. Such error crept-in inadvertently, therefore, the contention
of the respondents that the second petitioner has no locus is too
technical. Thus, second petitioner has locus to file the present
petition along with first petitioner.
18. The respondents have contended that petitioners
have alternative remedy under Section 128 of the Act, 1962.
Section 128 of the Act, 1962 reads as under:
“128. Appeals to [Commissioner (Appeals)]
(1) Any person aggrieved by any decision or order
passed under this Act by an officer of customs lower in
rank than a [Principal Commissioner of Customs or
Commissioner of Customs] may appeal to the
[Commissioner (Appeals)] [within sixty days] from the
date of the communication to him of such decision or
order:
[Provided that the Commissioner (Appeals) may, if he
is satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within the
aforesaid period of sixty days, allow it to be presented
within a further period of thirty days.][(1-A) The Commissioner (Appeals) may, if sufficient
cause is shown at any stage of hearing of an appeal,
grant time, from time to time, to the parties or any of
them and adjourn the hearing of the appeal for reasons
to be recorded in writing:
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
18/30Provided that no such adjournment shall be granted
more than three times to a party during hearing of the
appeal.](2)Every appeal under this section, shall be in such
form and shall be verified in such manner as may be
specified by rules made in this behalf.”
In support of alternative remedy number of decisions
cited on behalf of the respondents, the latest decision is in the case
of PHR Invent Educational Society (cited supra), Para – 20. In
Paragraph No. 29, principles have been laid down. Principles are
that violation of non-compliance of statutory provision, violation
of principle of natural justice and other criteria. For the purpose of
present case, violation of statutory provision like Section 110 of
the Act, 1962 has not been complied in the manner known to the
law to the extent of not writing the reasons in support of
impugned seizure memo dated 14.08.2020 whereby petitioners
have been denied opportunity of availing alternative remedy of
appeal ineffectively. The petitioners have cited decision in the
case of Godrej Sara Lee Ltd. cited supra. For the purpose of
entertaining the writ petition, without exhausting alternative
remedy, certain factual aspects are required to be examined
whether appeal against particular order or decision, aggrieved
person can file effective memorandum of appeal before the
appellate authority or not? In the present case, petitioners have
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assailed the seizure memo dated 14.08.2020. It is necessary to
reproduce seizure memo dated 14.08.2020 and it reads as under:
“SEIZURE MEMO dated 14.08.2020
Receipt of goods seized/detained under the Customs Act, 1962
Name of the : Customs Preventive Division, Muzaffarpur Imali
Unit Chatti, Muzaffarpur – 842001
Circle/Division
Place of Seizure : O/o the Deputy Commissioner, Customs
(Preventive) Division, Imlichatti, Muzaffarpur.
Date & Time of : 14.08.20 at 19.30 Hrs.
seizure
Particulars of : (1) Sri Lakhwinder Singh (Driver of Truck No
conveyance UP 31AT 1107 Age 42 years, S/o. Sri Ranjit Singh
premises/ village Rai Siana, P.O. Naurangabad, P.S. District
persons/ from Taran Taran, Punjab 143401 and Current
whom goods Residential Address H/o - Shri Harivansh Singh,
recovered. House No. 342, Chand Nagar, P.O. Chand Nagar,
New Delhi 110018, Mobbile No. 9873394961
(2) Kallu (Khalasi of Truck No. UP-31AT-
1107) Age 36 years, son of Digvijay Singh, village
Maigalganj. P.O. Pasigama, P.S. Maigalganj,
District Kheri Lakhimpur (Uttar Pradesh).
Name and : As above.
address of the
persons to whom
seizure receipt
issued
Reasons for : Violation of Sections 7, 11, 46, & 47 of the
seizure of Customs Act, 1962 read with Section 3 (2) of
goods. Foreign Trade (Development and Regulation) Act,
1992 and Government of India, Ministry of
Finance, issued U/s. 110 of the Customs Act, 1962
Case no and 01/20-21 dated 14.08.2020
date.
Underline supplied
Sl. Description of goods Make /origin Quantity of Value
No. and vehicle goods (In Rs.)
1. Total 308 bags of Foreign origin 21098.00 Rs.
Arecanut (Betel Nut) Kg 44,30,580.0
(Packed in 308 Bags 0 @ Rs. 210
each containing /- Kg
average 68.5 Kgs.
2. Truck No. UP-31AT- Tata LPT 3118 1 (One) Rs.
1107 Engine No CR BS IV 8 x 2 26,50,000/-
81D84478340 Chassis Truck
No.
MAT466623JSE13493
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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Total Total Rs.
70,80,580/-
(Rs.
Seventy
Lakh Eighty
Thousand
Five
Hundred
Eighty only
Signature of Witnesses Signature/thumb impression of accused
sd/- Sd/-
14.08.2020 14.08.2020
sd/- 14.08.2020
Signature of seizing Officer
Customs (P)Division, Muzaffarpur
Seal”
Reading of the aforementioned seizure memo dated
14.08.2020, in particularly, column number relating to reasons for
seizure of the goods, it has been indicated violation of various
Sections, however, merely quoting various Sections does not
suffice to draw inference that there are reasons for seizure of the
goods, therefore, minimal reasons were required to be written by
the Seizing Officer so as to enable the petitioners to prefer
effective appeal before the appellate authority under Section 128
of the Act, 1962. Further, Section 110 (1A) (1B) (1C) of the Act,
1962 has not been complied only to the extent of seizure of the
vehicle in the light of Notification dated 05.02.1986. It is
necessary to reproduce Notification dated 05.02.1986 and it reads
as under:
“[Notification No. 31/86-Customs, dated 5-2-1986]
In exercise of the powers conferred by sub-section (1A) of section 110 of the
Customs Act, 1962 (52 of 1962), the Central Government, having regard to the
perishable nature, depreciation in the value with the passage of time,
constraints of storage space and valuable nature of the goods, mentioned in the
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
21/30Schedule hereto annexed, hereby specifies the said goods for the purposes of that
sub-section.
THE SCHEDULE
1. Liquors;
1A Photographic Films;
1B Patent or Proprietary medicine; i.e., any drug or medicinal preparation, in whatever
form, for use in the internal or external treatment of, or for the prevention of
ailments in, human beings or animals, which bears either on itself or on its
container or both, a name which is not specified in a monograph, in a
Pharmacopoeia or Formulary;
2. Primary cells and primary batteries including re-chargeable batteries;
3. Wrist watches including electronic wrist watches; watch movements, parts or
components thereof;
3A Zip fasteners;
4. All electronic goods including television sets, Video Cassette Recorders, Tape
recorders, calculators, computers; components and spares thereof including diodes,
transistors, integrated circuits, etc.;
4A Gold in all forms including bullion, ingot, coin, ornament, crude Jewellery.
4B Silver in all forms including bullion, ingot, coin ornament, crude Jewellery.
5. Dangerous drugs and psychotropic substances;
6. Conveyance;
7. Man-made yarn and fabric;
8. Bulk drugs and chemicals falling under Section VI of the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975)
9. Currency, Indian and Foreign.
10. Diamonds, precious and semi-precious stones
11. Ball Bearings;
12. Cellular Phones.
13. Software; [ Inserted vide notification No. 20/2004-Customs (NT), dated
16.02.2004]
14. Any good seized by the proper officer under section 110 of the customs Act, 1962
(52 of 1962) for which order for provisional release has been passed but
provisional release has not been taken by the concerned person within a period of
one month from the date of the communication of such order. [Inserted vide
notification No. 20/2004- Customs (NT), dated 16.02.2004]
15. Petroleum products falling under Chapter 27 of the Customs Tariff Act, 1975 (51
of 1975); [inserted vide notification No. 32/2005- Customs (NT), dated
11.04.2005]
16. Red Sander [inserted vide notification No. 32/2005-Customs (NT), dated
11.04.2005]
17. Sandalwood [Inserted vide notification No. 25/2008-Customs (NT), dated
07/03/2008]
18. Fireworks”
Note: The Principal notification No. 31/86 – Customs, dated 5.02.1986 was issued vide
G.S.R. 871) dated the 5.02.1986 and was subsequently amended by notification No.
42/89-Customs (NT), dated 30.06.1989; notification No. 7/93-Customs (NT) dated
25.01.1993; notification No. 10/95-Customs (NT), dated 1.03.1995; notification No.
12/96-Customs (NT), dated 11.03.1996; notification No. 72/97-Customs (NT), dated
22.12.1997; notification No. 90/98-Cus (NT), dated 12.11.1998; notification No.
20/2004-Customs (NT), dated 16.02.2004; notification No. 32/2005-Customs (NT),
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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dated 11.04.2005; notification No. 25/2008-Customs (NT), dated 07.03.2008 &
143/2015-Customs (NT) dated 15.12.2015.
Reading of the aforementioned Notification, Column
No. 6, relating to Conveyance. In the present case truck is mode
of Conveyance and it was seized and the Seizing Officer or
officials of the Customs were required to comply Section 110
(1A), (1B), (1C). On these factual aspect of the matter the cited
decisions on behalf of the respondents to the extent that
petitioners have not exhausted the alternative remedy cannot be
taken into consideration. Recently Hon’ble Supreme Court in the
case of PHR Invent Educational Society, (cited supra) in
Paragraph No. 29, it is held as under:
“29. It could thus clearly be seen that the
Court has carved out certain exceptions when a petition
under Article 226 of the Constitution could be entertained
in spite of availability of an alternative remedy. Some of
them are thus:
(i) where the statutory authority has not acted
in accordance with the provisions of the enactment in
question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions
which are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.”
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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Co-ordinate Bench in United Spirit Limited and
Others vs. State of Bihar and Others reported in 2024 (2) BLJ
656 (In Paragraph No. 76), elaborately considered alternative
remedy while citing number of decisions. Paragraph No. 76 reads
as under:
“76. Instead of examining of each and every cited decisions
on behalf of the petitioners and learned Advocate General, we
thought of taking note of later decision of the Hon’ble Apex
Court namely M/s Godrej Sara Lee Ltd. vs. The Excise and
Taxation Officer cum Assessing Authority and Ors. reported in
2023 SCC OnLine SC 95 in which it is held that mere
availability of an alternative remedy of appeal/revision would
not oust the jurisdiction of the High Court under Article 226
of the Constitution of India. The analysis of the
aforementioned decision the power is required to be taken
note of for the purpose of entertaining the writ petition under
Article 226 of the Constitution of India despite the fact that
party has a statutory remedy.
“(i) The power under Article 226 of the Constitution of India
to issue writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well;
(ii) The High Court has discretion not to entertain the writ
petition. One of the restrictions placed on the power of the
High Court is an effective alternative remedy is available to
the aggrieved person;
(iii) Exceptions to the rule of alternative remedy arises where:
(a) the writ petition has been filed for the enforcement of
fundamental right protected by Part-III of the Constitution;
(b) there has been violation of the principles of natural
justice;
Underline Supplied
(c) the order or the proceedings are wholly without
jurisdiction; or
(d) the vires of legislation is challenged;
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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(iv) An alternative remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution of
India in an appropriate case though ordinarily; the writ
petition should not be entertained when an efficacious remedy
is provided by a law;
(v) When a right is created by statute which itself prescribes
the remedy or procedure for enforcing the right or the liability
the short must be had to that particulars statutory remedy
before invoking the discretionary remedy under Article 226 of
the Constitution of India;
(vi) This rule of the exhaustion of the statutory remedies is a
rule of Policy. convenience and discretion;
(vii) In cases where there are disputed question of facts, the
High Court may decide to decline jurisdiction in a writ
petition. However, if the High Court is objectively of the view
that the nature of the controversy requires the exercise of its
writ jurisdiction, such a view would not readily be
interference with.”
The aforementioned principles have been taken note by the
Apex Court in the case of Magadh Sugar & Energy Ltd. vs.
State of Bihar and Ors [2021(4) PLJR 142 (SC) [: 2021 (6)
BLJ 356 (SC)]].”
The aforementioned decision of the Hon’ble
Supreme Court and Co-ordinate Bench decision assist the
petitioners in not exhausting the alternative remedy on
principle. Therefore, contention of the respondents that
petitioners are required to be relegated to appellate
authority stands turndown.
19. The seizure of the memo is to be read with
Panchnama as contended by the learned senior counsel for
respondents. It is submitted that contents of the Panchnama
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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reveals that certain discrepancies in which material information, in
particularly, Invoice, Way Bill and Marudhar Assam Road Lines
Private Limited, it was submitted that there is variation in
mentioning the places like Paschim
Salkumar/Badaitari/Falakata/Alipurduar, West Bengal. These are
the places where the Krishna Kali Traders is trading. In the
Invoice, GSTIN number of the petitioners are reflected and also
Bill to Party and Ship to Party. Nodoubt, in the E-Way Bill
(Annexure 4) place of dispatch has been indicated as Madarihat.
This discrepancy is only a technical one to the extent that Postal
PIN Code is required, for that purpose E-Way Bill has been
obtained in the aforementioned place otherwise distance between
Badaitari and Madarihat is hardly 20 km and it is too technical. In
respect of weight is concerned, Gross Weight, Net Weight, and
Number of Bags, there is slight variation. Hardly if the total Gross
Weight and number of bags are taken, there is not much
difference. Certain bags containing mark of Bangladesh and
Guyana, in this regard, there are no specific material information
so as to draw inference that seizing goods were stated to be of
foreign origin. There are every chances of re-using of bags.
Therefore, these material information reflected in Panchnama was
required to be taken into consideration while reading seizure
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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memo may not be correct in the light of the fact that whatever
contents of the Panchnama cannot be read into seizure memo in
the light of Notification dated 08.02.2017. It is necessary to
reproduce Notification dated 08.02.2017 and it read as under:
“Instruction no. 01/2017-Customs
F.No. 591/04/2016-Cus (AS)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Anti-Smuggling Unit)
***
New Delhi, dated 8th February, 2017
To
All Principal Chief Commissioners/ Chief Commissioners of Customs/Customs
(Preventive),
All Principal Chief Commissioners /Chief Commissioners of Customs & Central
Excise
All Principal Directors General / Directors General of CBEC.
All Principal Commissioners/Commissioners of Customs/ Customs (Prev).
All Principal Commissioners/Commissioners of Customs (Appeals)
All Principal Commissioners/Commissioners of Customs & Central Excite
All Principal Commissioners/Commissioners of Customs & Central Excise
(Appeals).
Subject: Passing of order under Section 110 of the Customs Act, 1962-
reg.
Madam/Sir,
Attention is invited to Section 110 of the Customs Act, 1962 and Para 1.1 of
Chapter 15 of the Customs Manual 2015.
2. It has been brought to the notice of the Board that in several cases, goods
are being held-up/seized by the field formations only under panchnama and separate
orders for seizure of goods are not being passed. The Hon’ble Delhi High Court, in a
recent order, has held that a panchnama is a statement by panchas (witnesses) and
cannot be taken to be an order passed by the proper officer under Section 110 of the
Customs Act, 1962
3. Though Section 110 of the Act ibid does not specify passing an order for
seizure of goods, it says that where it is not practicable to seize any such goods, the
proper officer may serve on the owner of the goods an order that he shall not
remove, part with, or otherwise deal with the goods except with the previous
permission of such officer.
4. In view of the above, in all future cases, the following may be adhered to:
• Whenever goods are being seized, in addition to panchnama, the proper
officer must also pass an appropriate order (seizure memo/order etc) clearly
mentioning the reasons to believe that the goods go are liable for confiscation.
• Where it is not practicable to seize any such goods, the proper officer may
serve on the owner of the goods an order that he shall not remove, part with, or
otherwise deal with the goods except with the previous permission of such officer. In
such cases, investigations should be fast-tracked to expeditiously decide whether to
place the goods under seizure or to release the same to their owner.
5. Further, it has been brought to the notice of the Board that in cases where
provisional release of seized goods is allowed under Section 110A of the Act ibid,
show cause notices are not being issued within the stipulated time period on the
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
27/30ground that the goods have been released to the owner of the goods. The provisions
of the Customs Act, 1962 are clear that irrespective of the fact whether goods remain
seized or are provisionally released, once goods are seized, the time period
(including extended time period) stipulated under Section 110(2) of the Act shall
remain applicable and has to be strictly adhered to.
6. The Chief Commissioners/Director Generals are requested to circulate the
present guidelines to all the formations under their charge. Difficulties, if any, in
implementation of the aforesaid guidelines may be brought to the notice of the
Board. Hindi version follows.
(Rohit Anand)
Under Secretary to the Government of India”
20. Reading of the aforementioned Notification, it is
crystal clear that Panchnama cannot be read into seizure memo as
held by the Delhi High Court. After taking note of Delhi High
Court decision, the aforementioned Notification has been issued.
That apart reading of both the seizure memo and Panchnama, one
can draw inference that firstly seizure memo has been prepared
and secondly Panchnama has been drawn, therefore, at the time of
writing seizure memo, Panchnama was not written or existed.
This is evident from reading of Panchnama. It is also submitted,
on behalf of the respondents, that they had a secret information
and on the basis of such secret information the Seizing Officer had
proceeded to seize the subject matter of vehicle that suffice the
reason. Secret information is only tentative when Section 110 of
the Act, 1962 stipulates that reason to believe. In this backdrop,
Seizing Officer cannot keep reasons in his mind and he has to
disclose minimal reasons in the seizure memo. On this issue Co-
ordinate Bench of this Court elaborately considered in the Assam
Supari Traders case cited supra, therefore, the contention of the
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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respondents that seizure memo is to be read with Panchnama is
wholly incorrect and contrary to Customs Department Notification
dated 08.12.2017.
21. The learned counsel for the petitioners submitted
that pursuant to the seizure memo dated 14.08.2020 like seizure of
truck and goods, the authorities were required to comply Section
110 (1A), (1B), (1C), in the present case truck bearing No. UP 31
AT 1107 should have been subjected to the above provisions for
the reasons that in the Notification dated 05.02.1986 cited supra it
is not required insofar as seizure of Areca Nuts is concerned, on
the other hand, conveyance of Areca Nuts is required to be subject
to Section 110 (1A) (1B) (1C). Learned counsel for the
respondents submitted that Section 110 (1A) (1B) (1C) of the Act,
1962 is not attracted in the present case. Notification dated
05.02.1986 does not include Areca Nuts. On the other hand, he
could not apprise item No. 6 relating to Conveyance. In the
present case Seizing Officer has not only seized the Areca Nuts
and so also truck bearing No. UP 31 AT 1107 and truck would fall
under Conveyance under item No. 6 of the Notification dated
05.02.1986. Therefore, seizure of truck is concerned, Customs
Officials have to comply the aforementioned provisions.
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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22. The learned senior counsel vehemently argued that
earlier two decisions namely The Commissioner of Customs
(Preventive), Patna vs. Sri. Rajendra Sethiya in Mis. Appeal No.
528 of 2022 (Paragraph Nos. 7 and 13) read with Santosh Kumar
Murarka vs. Union of India in CWJC No. 5427 of 2022
(Paragraph No. 7) of this Court which have been taken note of in
the Assam Supari Traders case cited supra is binding in the light
of Hon’ble Supreme Court decision in the case of Mary Pushpam
vs. Telvi Curusumary and Others reported in 2024 5 SCC 224
(Paragraph Nos. 20 and 21). In the Assam Supari Traders case
cited supra, the Co-ordinate Bench has distinguished on factual
aspect of the matter to the extent that the cited decision of this
Court are distinguishable on facts of the case for the reasons that
there is no analysis of Section 110. Further in The Commissioner
of Customs (Preventive) Patna and Santosh Kumar Murarka
case (cited supra), there was no occasion to consider Section 110
(1A) (1B) (1C) of the Act 1962 read with Section 128, therefore,
two decisions cited supra of this Court by the learned senior
counsel for respondents that they are binding in the present case
has already been noticed in Assam Supari Traders case cited
supra. Be that as it may, in the present case issues are cited in
Paragraph No. 16 of this judgment. These were not the issues
Patna High Court CWJC No.7999 of 2020 dt.05-12-2024
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raised by the respective parties in those two decisions viz., The
Commissioner of Customs (Preventive) Patna and Santosh
Kumar Murarka (cited supra). Hence, Mary Pushpam case (cited
supra) is distinguishable.
23. In view of the above facts, legal issues and for the
reasons stated above, the impugned seizure memo dated
14.08.2020 vide Annexure – 6 is unsustainable and the same
deserves to be quashed and set aside and is, accordingly, quashed
and set aside.
24. CWJC No. 7682 of 2020 is allowed.
25. Pending application(s), if any, stands disposed of.
There is no order as to costs.
Re: CWJC No. 7999 of 2020; CWJC No. 3765 of 2020;
CWJC No. 768 of 2021
26. Registry is hereby directed to de-link CWJC No.
7999 of 2020; CWJC No. 3765 of 2020; CWJC No. 768 of
2021and relist these matters on 19.12.2024.
(P. B. Bajanthri, J)
(S. B. Pd. Singh, J)
GAURAV S./-
AFR/NAFR AFR CAV DATE 25.11.2024 Uploading Date 05.12.2024 Transmission Date