LexM/S. RAJMAL LAKHICHAND AND ANR. versus COMMR. CEN. EXC. & CUSTOMS, AURNAGABAD
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A B [2011] 7 S.C.R. 850 M/S. RAJMAL LAKHICHAND AND ANR. v. COMMR. CEN. EXC. & CUSTOMS, AURNAGABAD (Civil Appeal No. 4919 of 2011) . JULY 4, 2011 [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.] Customs Act, 1962: s.130(3) - Reference - Scope of - C Confiscation of seized silver.:... Silver weighing 194.250 kgs. which was locally purchased confiscated uls. 120(2) and silver weighing 1713. 807 kgs. imported illegally from abro_ad confiscated uls. 111 (d) - Tribunal directed confiscation of entire quahtity of silver u/s; 120(2) - Provision of s. 120(2) was . o not· _invoked in· the show cause notice for- silver weighing '194.250 kgs . .:.. Reference application· before High Court - Question referred to High Court that whether Tribunal was · justified in invoking s. 120(2) tO order confiscation of silver when the said provision was not invoked in. the show cause E notice and when the appellants were not given any opportunity of being heard in the matter by the Tribunal - High Court answered the reference in favour of appellant holding that Tribunal was not justified in invoking s120(2) to confiscate entire silver - It refused to expand the scope of reference to I= confiscation of silver to the extent of 1713. 807 Kgs. and restricted it to the silver weighing 194. 250 Kgs. only - Correctness of- Held: Correct - Tribunal was not justified in. invoking the provisions of s. 120(2) to order confiscation of silver when the said provision was not invoked in the show . G cause notice and when the appellant was not given any ·· opportuhity of being heatd in the matter by the Tribunal - High Court was justified in refusing to expand the scope of the reference so as to include the silver Weighing 1713.807 kgs. which was confiscated uls. 111(d) of the Act while hearing the reference with regard to silver weighing 194. 250 kgs. but · H · ·. ·. 850. . · . • . ~JMAL LAKHICHAN v. COMMR. CEN. EXC. & CUSTOMS, 851 AURNAGABAD confiscated under a different provision of law, namely, u/ A s. 120(2) of the Act - High Court rightly held since two different laws are applicable there was no scope of expanding reference to include silver weighing 1713. 807 Kgs also - Reference. During search, the Directorate of Revenue Intelligence, seized silver weighing 1913.256 Kgs. from B the premises of the appellants. Pursuant to the same, a show cause notice was issued to the appellants. The adjudicating authority discharged the show cause notice holding that the evidence collected were not convincing C enough to hold the allegations as proved. The Tribunal allowed the appeals and ordered for confiscation of the seized silver absolutely and also imposed penalty on the appellants. The appellants filed applications in which they framed as many as 11 questions and prayed for reference D to the High Court. The Tribunal by its order dated 26.09.1996 rejected the reference applications holding that none of the questions raised therein required E consideration by the High Court and also directed confiscation of silver weighing 194.250 kgs. which was locally purchased from "Mis. D" and for confiscation of another quantity of silver weighing 1713.807 kgs. as it was imported illegally from abroad. F Aggrieved, the appellants filed the application under Section 130(3) of the Customs Act before the High Court seeking direction to the Tribunal to refer the questions of law which the Tribunal refused to refer. The High Court passed the order to the effect that the question of law G arose whether the Tribunal was justified in invoking the provisions of Section 120(2) of the Customs Act, 1962 to order confiscation of silver weighing 194.250 kgs. purchased from "Mis. D" when the said provisions was not invoked in the Show Cause Notice and when the . H 852 SUPREME r,ouRT REPORTS [2011) 7 S.C.R. A appellant was not given any opportunity of being heard in the matter by the Tribunal. The appellant sought modification of the order which subsequently came to be modified deleting the words "weighing 194.250 kgs. purchased from M/s. D". 8 Consequent upon the said modification, the modified question was referred to the High Court deleting the words "weighing 194.250 kgs. purchased from M/s. D". The High Court answered the said question in favour of the appellant and held that the Tribunal was not justified C in invoking the provision of Section 120(2) of the Customs Act, 1962 to confiscate
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