Bhaskar Bhattacharya, J. - (1.) THIS Mandamus-Appeal is at the instance of an unsuccessful writ-petitioner and is directed against an order dated 17th February, 2011 passed by a learned Single Judge of this Court by which the learned Single Judge disposed of a writ-application filed by the appellant by directing that the detained consignment of the writ-petitioner should be immediately released if no show-cause notice under section 124(a) of the Customs Act is issued within six months from the date of detention of the consignment and if six months expire and/or have already expired within such time, not exceeding further six months as the Commissioner might allow or if the Commissioner of Customs does not extend the time, then it would be open to the writ-petitioner to claim damages for wrongful detention in accordance with law.
(2.) BEING dissatisfied, the writ-petitioner has come up with the present Mandamus-Appeal. In the writ-application, the grievance of the writ-petitioner was that although the consignments sought to be exported by the writ-petitioner were detained by the Customs Authority on 4th August, 2010, the Authority was neither issuing any show-cause notice nor had issued any order of seizer under section 110 of the Customs Act. According to the writ-petitioner for such inaction or deliberate illegal action on the part of the respondent authority, the writ- petitioner is unable to take any action in terms of section 110(2) of the Act. According to the writ-petitioner in the name of roving enquiry, the Customs Authority is harassing the writ-petitioner without taking any step in terms of section 110 of the Act although the Authority knows that the writ-petitioner is the owner of the consignments and summons in terms of section 108 of the Act has already been issued to the writ-petitioner. The learned Single Judge took note of the fact that in this case a notice dated 31st January, 2011 has been issued to the writ-petitioner purportedly under section 110(2) of the Act for extension of time to issue show-cause notice under section 124(a) of the Act for further period of six months but according to the learned Judge, the said notice was apparently without any authority as there was no scope for the Directorate of Revenue Intelligence to issue any notice to the writ-petitioner under section 110(2) of the Act. The learned Judge further found that the Authorities had proceeded on the basis that the goods had been detained in exercise of power under section 110 and accordingly, purported to issue the aforesaid notice under section 110(2) of the Act. His Lordship further held that actually there is no order of seizure or detention in the present case under .section 110 on the owner of the consignments and that there being no limitation under section 110, a notice under section 110 may be issued at any point of time. However, the learned Single Judge proceeded, such notice should ordinarily be issued immediately upon interception and detention of the goods and the goods cannot be indefinitely detained without any order under section 110. Ultimately, the learned Judge held that there being no limitation for issue of an order of seizer under section 110, the appropriate authority might still issue an order of seizer under section 110 and even if there were a formal order of detention under section 110, the goods could have been detained for a period of six months and then a further period not exceeding six months if the Commissioner of Customs extended the time for sufficient cause being shown. According to the learned Single Judge, as the allegations against the writ-petitioner were serious, this Court was not inclined to scuttle the investigation by directing release of the consignments in question.
(3.) AFTER hearing the learned Counsel for the parties and after going through the materials on record including the affidavit- in- opposition, we find that in the case before us, in the affidavit- in- opposition it is alleged that the consignments of the writ-petitioner loaded in the trucks entered into the CWC Complex on 31st July, 2010 and even on 4th August, 2010 when the visiting DRI Officers inquired about the status of the goods loaded in those trucks, no appropriate documents were found available with the competent authority. Even subsequently, no Bill of Export was placed before the authority of Petrapole Land Customs Station Authority showing any document intending to export the same. It is further stated that the goods were detained for the purpose of investigation based on specific intelligence that those goods were attempted to be exported illegally for unlawful gain of Duty Exempted Pass Book (DEPB) credit and that the investigation proceeding had not attained its finality. From the aforesaid averment, it is clear that although no specific order of seizer has been issued to the writ-petitioner, it is apparent that there has been actual detention of the goods under section 110 of the Act and time will run for giving show-cause notice under section 124(a) from at least 4th August, 2010. It further appears that already summons in terms of section 108 of the Act has been issued to the writ-petitioner and he is being examined and thus, it necessarily follows that there has been seizure of the goods in terms of section 110 of the Act and the writ-petitioner has been summoned in connection with the investigation.;