Sunita Shah v. Commissioner of Customs, IGI Airport & Ors.

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner under Article 226 and 227 of the Constitution of India, inter alia, assailing the impugned Orderin-Original dated 11th July, 2024 passed by the Joint Commissioner of Customs, IGI Airport, Terminal-3, New Delhi (hereinafter, ‘impugned OIO’).

3. A brief background of the Petitioner’s case is that, the Petitioner who is a Nepalese citizen, was travelling from UAE to India on 21st June, 2024. Upon her arrival at the Indira Gandhi International Airport, New Delhi, she was intercepted by the concerned officials of the Customs Department and 4 gold bangles weighing 240 grams (hereinafter, ‘gold bangles’)were stated to be seized from her vide detention receipt dated 21st, June, 2024.

4. It is the case of the Petitioner that no Show Cause Notice (hereinafter, ‘SCN’) was issued to the Petitioner, and the impugned OIO was passed on 11th July, 2024.

5. Vide the impugned OIO, the gold bangles were confiscated absolutely and a penalty was imposed. The relevant portion of the impugned OIO is as under: “ ORDER i) I deny the "Free Allowance, if any, admissible to the Pas Sham Sunder Verma for not declaring the detained goods to the Proper Officer at Red Channel as well to the Customs Officer at Green Channel who intercepted him and recovered the detained goods from him. ii) I declare the passenger Ms Sunita Shah as “an ineligible Passenger” for the purpose of the Notification No. 50/ 2017-Cus dated 30.06.2017 (as amended) read with Baggage Rules, 2016 (as amended): ⅲ) I order absolute confiscation of Four Gold bangles having average purity 998 with gross and net weight 240 grams having Assessable value Rs.16,13,261/- recovered from the Pax under Section 111 (d ), 111 (j) 111 (m) of the Customs Act, 1962; iv) I also impose a penalty of Rs. 1,60,000/- (Rupees One Lac Sixty Thousand Only) on the passenger MsSunita Shah under Section 112 (a) & 112 ( b) of the Customs Act, 1962.”

6. Thereafter, the Petitioner filed an appeal, however, the appeal has still not been decided by the Appellate Authority. It is submitted on behalf of ld. Counsel for the Petitioner that under Section 128A(4A) of the Customs Act, 1962, the appeal is to be decided within a period of six months. The said Section is extracted as under, for ready reference: “128A. Procedure in appeal.— xxx [(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed.].”

7. The grievance of the Petitioner is that almost a year has passed and the appeal has not been decided. In addition, ld. Counsel for the Petitioner relies upon the recent decision of the Supreme Court in Civil Appeal No.3489/2024 titled Union of India and Ors. v. Jatin Ahuja where the Apex Court has held that if no SCN is issued, the party is entitled to unconditional release of the seized goods. The relevant portions of the said judgment is extracted below:

mandatory provision of Section 110(2).

19. In the case in hand, indisputably the car was seized under sub-section (1) and furthermore no notice in respect of the goods seized was given under clause (a) of section 124 of the said Act within six months of the seizure. The consequence, therefore, in such a case is that the goods shall be returned to the person from whose possession they were seized. The first proviso to sub-section (2) of section 110 of the said Act, however, provides that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend the six months' period by a period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified. The proviso therefore contemplates that the period of six months mentioned in sub-section (2) of section 110 of the said Act can be extended by the higher authority for a further period not exceeding six months, for reasons to be recorded in writing. The proviso also requires the higher authority to inform this to the person from whom such goods were seized before the expiry of the period of six months mentioned in sub-section (2) of section

110. We find that in respect of the seized car, there is neither any notice under clause (a) of section 124 issued to the respondent within six months of the seizure nor the period of six months ever came to be extended for a further period of six months. In the absence of there being any notice as required by the first proviso even within the extended period upto one year, the consequence that ought to follow is release of the seized car. [...]

24. The appeals before us are all anterior in time to the coming into force of the second proviso to Section 110(2) of the Act, 1962. Although, it is not necessary for us to say anything further, yet we may clarify that the time period to issue notice under Clause (a) of Section 124 is prescribed only in sub-section (2) of Section 110 of the Act, 1962. This time period has nothing to do ultimately with the issuance of showcause notice under Section 124 of the Act, 1962. The two provisions are distinct and they operate in a different field.”

8. On the other hand, ld. Counsel for the Respondents submits that there was a waiver of SCN in the present case. The said position is refuted by the ld. Counsel for the Petitioner, on the ground that there was a standard preprinted waiver form.

9. Heard ld. Counsels for the parties. Insofar as the validity of pre-printed waiver of SCN is concerned, this Court has already considered the same in Amit Kumar v. The Commissioner of Customs, 2025:DHC:751-DB as under: