1. This application filed by the appellant is for an interim injunction restraining the Commissioner of Customs from selling 10 M.Ts. of sandal wood chips confiscated from M/s. J.J. Trading Corporation, of which the appellant was a partner. After examining the record sand hearing both sides, we are of the view that the appeal itself should be disposed of summarily in view of the peculiar facts and circumstances presented before us. Accordingly, after dismissing the application, we proceed to deal with the appeal.
2. The appellant and one Shri M. Manickkam were partners of the firm, M/s. J.J. Trading Corporation. On 21.10.1992, the above quantity of sandal wood chips was seized from the premises of the firm by officers of Customs and a case was booked against Shri M. Manickkam. The appellant's name was left out, even though, in the criminal prosecution by police, both partners were name as accused (we are told that those proceedings have ended up in acquittal of the appellant). Accordingly a show-cause notice was issued to M/s. J.J. Trading Corporation and Shri M. Manickkam for confiscation of the above goods under Section 113 of the Customs Act and for imposition of penalty on the noticees. Shri M.Manickkam died on 13.7.2000. Later on, an order was passed by the Commissioner of Customs confiscating the goods absolutely and imposing penalty of Rs. 2 lakhs under Section 114 of the Customs Act on "M/s.
J.J. Trading Corporation represented by Shri M. Manickkam (Partner)".
We are told that the appellant (Sh. Manickkam's partner) was not aware of this order of the Commissioner and that he became aware of the order only on 10.3.2006. It is further submitted by the Counsel that, by a letter dated 20.7.2000, the appellant informed the Commissioner of Customs that he was one of the Partners of M/s. J.J. Trading Corporation, an unregistered Partnership firm; that the other partner Shri Manickkam died on 13.7.2000; and that the firm did not survive on account of his death. It is submitted that there was no response to this letter. Ld. Counsel further submits that, upon coming to know about the Commissioner's order, the appellants filed a Writ Petition in the High Court and that, as that petition was dismissed, he filed a Writ Appeal before Division Bench of the Court. Though the Division Bench dismissed the appeal, it enabled the appellant to file an appeal with this Tribunal against the Commissioner's order within 4 weeks. A certified copy of the judgment of the Division Bench is available on record and the same reads as under: We have heard the learned Counsel for the appellant and perused the order of the learned single judge. The appellant has got a remedy of filing a statutory appeal. No interference is therefore called for with the order of the learned single Judge. The writ appeal is dismissed. The appellant is given four weeks time to file the appeal before the appellate authority.
The present appeal was filed, pursuant to the above direction, ld.Counsel submits.
3. When the case arose before us on the last occasion, we directed the appellant to file an application for condonation of delay and such application has since been filed. We have heard ld. Jt. CDR also.
4. It appears from the records that M/s. J.J. Trading Corporation was an unregistered partnership with Shri M. Manickkam (who passed away on 13.7.2000) and Shri A. Sivan (appellant) as partners. The sandal wood chips were seized from their premises. After completion of investigations, the department issued show-cause notice to M/s. J.J.Trading Corporation and Shri M. Manickkam (Partner). No such notice was issued to Shri A. Sivan (appellant). Ld. Commissioner ordered absolute confiscation of the goods and imposed penalty under Section 114 of the Customs Act on "M/s. J.J. Trading Corporation represented by its partner, Shri M. Manickkam." Apparently, the firm was taken to be represented by Shri M. Manickkam only, even though he and the appellant were partners of the firm. The fact remains that seizure of the goods was effected in the premises of the partnership firm as evidenced by the relevant mahazar. Under the Customs Act, any proposal for confiscation of the goods should have been raised against the persons from whose possession the goods were seized. As the goods were seized from the premises of the partnership, they should be treated as having been seized from the possession of both the partners. If that be the case, a show-cause notice should have been issued to the other partner (appellant) also in terms of Section 124 of the Customs Act. This has not happened in this case. The appellant claims that he has come to know about the Commissioner's order of confiscation only in March 2006.
There is no material on record to rebut this claim. If that be the case, the appeal filed on 20.4.06 is within the time limit. The application for condonation of delay is infructuous.
5. Obviously, this is a case which should go back to the Commissioner for fresh decision on the question whether the seized goods are liable to be confiscated and, if so, whether absolutely or with option for redemption. Penal liability has also to be examined afresh, depending on the decision on the confiscability of the goods. Since the appellant did not receive any notice contemplated under Section 124 of the Customs Act, he has to be called upon to show cause as to why the goods should not be confiscated and penalty should not be imposed. Ld.
Commissioner of customs should do this and, then, proceed to adjudicate upon the notice in accordance with law and the principles of natural justice. To enable him to do so, we set aside the impugned order and allow this appeal by way of remand.