1994 PLP 1797 (CLC)

4. The learned counsel for the respondent No. 3 argued that the action of the respondents Nos. 1 and 2 cannot be legally justified because once the matter was decided by respondent No. 3 in accordance with law the respondent No. 2 could not take any action against the vehicles of the petitioner. Moreso for the reason that after seizing the matter was again to be referred to the Collector, who did not find it a case worth any action. It is explained that the Collector was quite conscious of the fact that action has to be taken within two months but since the action of the respondents Nos. 1 and 2 was illegal, therefore, he refused to ractify the same.

5. On the other hand, the learned Deputy Attorney‑General raised a preliminary objection to the effect that the petitioner has no locus standi to file these writ petitions as he is not an aggrieved person. It was the importer alone who could have challenged the action of the respondents Nos. 1 and

2. The next submission is that the respondent No. 2 is authorized to recheck the goods cleared by the concerned Customs Authorities. The action is fully justified and legal. It is added that the importers were getting the cars imported against fake documents and getting the same cleared without paying the actual custom duty etc. payable on the vehicles.

6. The learned Deputy Attorney‑General in answer to the Court query as to who assessed the duty and whether the duty or charges assessed by the Custom Authorities were paid or not, informed that the duty assessed by the Custom Authorities was paid by the importers but the assessment was deficient. The learned counsel for the petitioner while replying to the preliminary objection argued that the vehicles were taken by the respondent No. 2 in possession from‑him and‑it was he who was entitled to the restoration of the vehicles, Therefore the 'petitioner has locus standi to maintain the Constitutional petitions; 7. 1 have given my anxious considerations to the arguments advanced 'on behalf of the parties,: gone through the record acid relevant provisions of the Act, 1969. The‑preliminary objection that the petitioner has no locus standi to file these writ petitions because he is only a clearing agent and not the importer on the face of it looks very sound but it does not take into consideration the provisions of section 168 of the Act of 1969, which reads as under:‑‑ "168: Seizure of things liable to confiscation.‑‑(1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (2) Where any goods are seized under subsection (1) and no show‑cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by period not exceeding two months. (3) ......... (4) ............ It is clear from the words underlined that goods seized under subsection (2) are liable to be returned to the person from whose possession they were seized. In the present case the cars were seized by the respondent No. 2 admittedly while the same were in possession of the petitioner, therefore, he has a locus standi to question the seizure and in any case when no show‑cause notice was issued‑as envisaged under section 180 of Act 1969 within two months of the seizure, therefore, he was entitled to the restoration of the vehicles as per sub section (2) of section 168 reproduced above. The objection is, therefore, without any merit. The same is overruled.

8. Now coming to the merits The vehicles subject‑matter of Writ Petitions Nos. 136/91 and 137/91 were not only seizure but after serving the notice of section 180 of the Act 1969 the same were ordered to be confiscated. However, the importers were given an option as per section 181 of Act 1969 to pay fine in lieu of the confiscation of the goods and get the goods. The importer 'exercised this option and paid the amount worked out by the concerned Custom Authorities and the vehicles‑ were released. The vehicle after confiscation under section 180 vested in the Government, therefore, the question of seizure once again is patently illegal and unwarranted by law. The vehicles have ceased to be the property of the importer after same stood confiscated under section 180 of the Act of 1969.

9. The third vehicle was seized because according to the respondent No.l it was a latest model new car. The assertion is falsified by the record according to which it was a 1986 Model second‑hand car, therefore, the same was rightly cleared by the Custom Authorities and seizure by the respondent is patently illegal and mala fide. The jealousies/rivalries of two wings of the Custom Department are clear from this case. This Court cannot leave the citizens at the mercy of them as a result of their overlapping authority or jurisdiction. The citizens are to be afforded full protection in such a situation.

10. Now coming to the other aspect of the matter. The respondent No. 2 was only competent to seize the vehicles and refer the matter to the Collector Customs in view of the clear provisions of section 168 of the Act of 1969. The respondent No. 2 admitted this legal position and stated that after seizing the vehicles he referred the matter to the Collector, who was to issue notice under section 180 within, two months of the seizure of the goods or within extended period but neither period was extended nor notice was issued till this date although period of almost 2‑1/2 years passed. The learned counsel for hte respondent No. 3 very clearly and categorically stated that since the action of the respondents Nos. 1 and 2 was illegal, therefore, the Collector did not proceed any further with the matter. The natural corollary is that the petitioner was entitled to possession of the vehicles on the force of subsection (2) of section 168 after the expiry of two months, therefore, he could ask for the restoration of the vehicles and on failure of the respondents could maintain the Constitutional petition. This is what he has prayed in these petitions. The learned Deputy Attorney‑General argued that the C.B.R. is competent of its own motion to call for and examine the record of any proceedings in which the Collector of Customs as an adjudicating authority has passed any order under this Act for the purpose of satisfying itself as to its legality and propriety. But this is not the case here. The respondents Nos. 1 and 2 do not enjoy the powers of C.B.R. They cannot sit in appeal to the orders passed by the Custom Authorities under the Customs Act. I am of the considered view that if there was a grain of truth in what was pleaded by the respondent No. 2 then the course open for him and respondent No. 1 was to apprise the C.B.R. to examine all the alleged illegal orders of the Custom Authorities. The argument of the learned counsel for the petitioner that this whole exercise was mala fide gets some support from the fact that the respondents Nos. 1 and 2 did not follow the legal course open to them. This is not all. The C.B.R. can exercise suo motu powers within one year from the date of decision or order and not thereafter in view of sub section (3) of section

195. The learned Deputy Attorney‑General was also put him in an embarrassing position by the respondents Nos. 1 and 2 while making arguments against law and stand of their own department, which was fully justified.

11. The upshot of this discussion is that these writ petitions are allowed with costs and the action of the respondents Nos. 1 and 2 is declared illegal and without jurisdiction. H.B.T./A‑635/L Petition allowed.