D.G. Karnik, J. - (1.) RULE , by consent heard forthwith. The respondent No. 3 has not put any appearance though served.
(2.) BY this petition, the petitioner seeks a mandamus or a direction or order directing the Union of India and the customs authorities to forthwith release the Hot Mix Paver Machine seized by them from the premises of the petitioner under the seizure memo dated 14th November 2008. The respondent No. 3 imported Hot Mix Paver Machine bearing model No. M/CS1800, SI No. 06681674 (for short "the machine") through WIRTGEN India Pvt. Ltd., Bangalore in the month of October 2005 without payment of customs duty as an actual user in view of an exemption allowed to actual users. The machine was insured by it with ICICI Lombard General Insurance Co. for a sum of Rs. 9,29,89,400/ -. The machine met with an accident in or about January 2007. The respondent No. 3 reported the accident to the insurance company. After the inspection, the insurance company was of the view that the machine could not be repaired and brought back to its original condition and was required to be discarded. The insurance company settled the claim of the respondent No. 3 on a total loss basis and paid the settled amount to the respondent No. 3 after deducting its scrap/residual value with permission to respondent No. 3 to sell. The respondent No. 3 accordingly sold to the petitioner the machine for Rs. 24,00,000/ -. According to the respondent Nos. 1 and 2, the machine was allowed to be imported without payment of duty on condition that the importer respondent No. 3 would use it for its own use for a period of 5 years. Since the machine, though met with an accident, was sold within a period of 5 years of the import, the condition for a duty free import was breached and was liable for confiscation under Section 111(o) of the Customs Act, 1962 (for short "the Act"). The respondent No. 2 accordingly seized the machine from the premises of the petitioner on 14th November 2008 under a seizure panchanama. The petitioner has now approached this Court for release of the machine.
(3.) ACCORDING to the petitioner, no notice was issued to it prior to the seizure or even after the seizure till date and, in any event, the respondents were required to give notice to the petitioner under Section 110(2) read with Sub -section (a) of Section 124 of the Act within 6 months (which could be extended by a further period of 6 months). Since no notice has been issued to the petitioner within 6 months or even after the expiry of one year, the continued seizure and detention of the machine by the respondents is bad in law. In support, learned Counsel for the petitioner refers to and relies upon a decision of the Supreme Court in Assistant Collector of Customs v. Charandas Malhotra : 1971 (3) SCR 802, and two decisions of this Court in P. Kishanchand Textiles Pvt. Ltd. v. Union of India, (Writ Petition No. 574 of 2009 decided on 10th June 2009 - ) and Jayant Hansraj Shah v. Union of India (Writ Petition No. 316 of 2008 decided on 29th February 2008 - ).;