Full Judgment
2. The learned counsel states that in these cases a consignment of cigarette lighters was booked at Bangkok for Kabul and was being transhipped through Delhi when it was detained, examined and seized by the Delhi Customs on 11-11-1985.
3. A show cause notice was issued in May 1986 asking the appellants to show cause as to why the goods should not be confiscated under Section 111(d) and they should not be penalised under Section 112.
4. The appellant Shri Avtar Singh of Bangkok was the consigner and the appellant Shri Saran Singh of Kabul was the consignee.
5. It was their contention that the show cause notice merely shows the month of issue as May 1986 and does not indicate the date of issue.
6. It appears to have been despatched on 12-5-1986 to the consignee (at his Kabul address).
7. Presumably it was issued on the same day to the consigner (at Bangkok address). It was however returned undelivered from Bangkok (back to the Delhi Customs on 25-8-1986) as apparent from the internal pages 3 and 4 of the order in original.
8. It was received by the consignee at Kabul address on 22-5-1986 as apparent from the photo copy of the envelope filed by them.
9. It was their contention that this shows that it was not served on either of the two appellants within 6 months of the date of seizure.
11. It was also their contention that the show cause notice is based on assumptions and presumptions namely that the goods were likely to be substituted in the Indian Airlines Cargo Godown and is therefore invalid.
12. That as a matter of fact cigarette lighters had been booked by the consigner at Bangkok to the consignee at Kabul and were simply required to be transhipped at Delhi Airport.
13. That they were not required to make any declaration and in any eventuality had not misdeclared the goods and the mistake if any in the air-way bill was not relatable to either of them but only to the Airlines.
14. That this was admittedly a case of transhipment and therefore did not attract the provisions of Import Control Act and order and Section 111(d) of the Customs Act.
15. That the learned Addl. Collector has not applied his mind and has not brought out how the appellants were involved in the alleged offences and how they were liable to penalty.
16. In view of the above submissions of the learned counsel, the Bench asked the learned SDR to first show the proof of service of the show cause notice(s) as time bar was a threshold point and then make further submissions if necessary.
17. The learned SDR drew attention to the order in original and mentioned that the learned Addl. Collector has observed at Page 3 of the order in original that "from the records I find that the seizure was made on 11-11-1985 and show cause notice was issued well within six months of the date of seizure". The learned Addl. Collector has further observed that since Shri Avtar Singh was not traced with reference to his postal address in Bangkok show cause notice was returned to this office on 25-8-1986. Since show cause notice was issued within the time limit, citations quoted by the counsel will not apply to this case.
18. He would further like to draw the attention to the discussion portion in the order in original and the order of the Addl. Collector.
19. We find that the submissions of the learned counsel have a strong force. The department has not been able to show that the show cause notice was served within six months of the date of seizure on the appellants. As such the goods were required to be released in terms of Section 110(2) of the Customs Act, 1962 and the order of confiscation was liable to be set aside on this ground alone.
20. Even otherwise the departmental action is prima facie based on assumptions and presumptions and no case is made out against the appellants.
21. It is admittedly a case of transhipment and the department has not been able to show that the appellants had committed any offence and were liable to any penalty.
22. In view of the above position, we accept the appeals and allow consequential relief.
23. The goods should be immediately released and the penalty if already paid should be immediately refunded.