W.P.(C)/10928/2025 of HARDYAL SINGH Vs COMMISSIONER OF CUSTOMS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 10928/2025HARDYAL SINGH

.....Petitioner

Through:Ms. Richa Kumari, Mr. Pawan & Mr.Prashant Chaudhary, Advs.

versus

COMMISSIONER OF CUSTOMS

.....Respondent

Through:Ms. Monica Benjamin, SSC with Ms.Nancy Jain Adv. ([REDACTED])

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE SHAIL JAINO R R%31.07.2025

1.This hearing has been done through hybrid mode.

2.The present petition has been filed by the Petitioner- Hardyal Singhunder Article 226 of the Constitution of India, inter alia, seeking release ofthe following goods:

One gold chain, weighing 105 grams;

●Two iPhone 15 Pro Max (256 GB)

The said goods have been seized by the Customs Department vide detentionreceipt bearing no. 4091 dated 27[th]March 2024 (New detention receipt no.54089 dated 31[st]May 2024)

3.The case of the Petitioner is that he had arrived from Dubai to NewDelhi on 27[th]March 2024. Upon arrival at the Indira Gandhi InternationalAirport, New Delhi, the Petitioner was intercepted by the concerned officialsof the Customs Department and above-mentioned goods of the Petitioner were

detained.

4.The appraisement of the said goods is stated to be done on 31[st]May2024. However, no Show Cause Notice (hereinafter, ‘SCN’) was issued in thismatter in terms of Section 110 of the Customs Act, 1962 and no personalhearing has also been granted to the Petitioner till the filing of the present writpetition.

5.Ld. Counsel for the Petitioner submits that after filing of the present writpetition, personal hearing notice has been received calling the Petitioner forpersonal hearing on 4[th]August 2025, 11[th]August 2025 and 18[th]August 2025.6.Ms. Monica Benjamin, ld. SSC for the Respondent hands across copyof thestandardformwaiver signed by the Petitioner’sauthorizedrepresentative, who has also signed the Vakalatnama in the present writpetition. As per the said standard form, the Petitioner has waived the SCN andpersonal hearing in this matter. The said standard form also states that oralSCN has been received by the Petitioner.

7.Heard. This Court has repeatedly held that even if the SCN has beenwaived and oral SCN has been given to the Petitioner, personal hearing cannotbe waived. This has been clarified in the decision Amit Kumar v. TheCommissioner of Customs, 2025:DHC:751-DB and Mr Makhinder Chopravs Commissioner of Customs New Delhi, 2025:DHC:1162-DB. Theoperative portion of the judgement in Amit Kumar (supra) is as under:

“16. perusal of Section 124 of the Act along with the allegedwaiver which is relied upon would show that the oral SCN cannotbe deemed to have been served in this manner as is being allegedby the Department. If an oral SCN waiver has to be agreed to bythe person concerned, the same ought to be in the form of properdeclaration, consciously signed by the person concerned. Eventhen, an opportunity of hearing ought to be afforded, inasmuch as,

the person concerned cannot be condemned unheard in thesematters. Printed waivers of this nature would fundamentallyviolate rights of persons who are affected. Natural justice is notmerely lip-service. It has to be given effect and complied with inletter and spirit.

17. The three-pronged waiver which the form contains is not evendecipherable or comprehensible to the common man. Apart fromagreeing as per the said form that the oral SCN has been served,the person affected has also waived right for personal hearing.Such form in fact shocks the conscience of the Court, that too incases of the present nature where travellers/tourists are made torun from pillar to post for seeking release of detained goods.

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19. This Court is of the opinion that the printed waiver of SCN andthe printed statement made in the request for release of goodscannot be considered or deemed to be an oral SCN, in compliancewith Section 124. The SCN in the present case is accordinglydeemed to have not been issued and thus the detention itself wouldbe contrary to law. The order passed in original without issuanceof SCN and without hearing the Petitioner, is not sustainable inlaw. The Order-in-Original dated 29th November, 2024 isaccordingly set-aside”

8.Further, this Court in Makhinder Chopra (Supra) had analysed Section124 of the Customs Act, 1962 while considering the issue of waiver of ShowCause Notice and personal hearing. The Court while relying on the decisionin Amit Kumar (Supra) held as under:

“23. As mentioned above, the Customs Department has reliedupon the undertaking in standard form dated 17th June, 2024signed by the Petitioner, wherein the Petitioner has waived ofissuance of the show cause notice and personal hearing. It isadmitted position that no show cause notice has been issued tothe Petitioner on the basis of the said undertaking.

24. The issuance of show cause notice before confiscation ofgoods by the Customs officials is covered under Section 124 ofthe Act, which reads as under: “

“124. Issue of show cause notice before confiscation of goods,etc.— No order confiscating any goods or imposing anypenalty on any person shall be made under this Chapter unlessthe owner of the goods or such person—

(a) is given notice in writing with the prior approval of theofficer of Customs not below the rank of an AssistantCommissioner of Customs, informing him of the grounds onwhich it is proposed to confiscate the goods or to impose apenalty;

(b) is given an opportunity of making representation inwriting within such reasonable time as may be specified in thenotice against the grounds of confiscation or imposition ofpenalty mentioned therein; and

(c) is given reasonable opportunity of being heard in thematter:

Provided that the notice referred to in clause (a) and therepresentation referred to in clause (b) may, at the request ofthe person concerned be oral.

Provided further that notwithstanding issue of notice underthis section, the proper officer may issue supplementarynotice under such circumstances and in such manner as maybe prescribed.”

25.A perusal of the above Section would show that the principles ofnatural justice have to be followed by the Customs Department before-detention of the goods. The Section provides threefold requirement:

i) notice in writing informing the grounds of confiscation;

ii) An opportunity of making representation in writing againstthe said grounds of confiscation;

iii) reasonable opportunity of personal hearing.

26. In terms of proviso to the said Section, the Customs Authoritymay issue an oral show cause notice to the tourist in lieu of awritten show cause notice at the request of the said tourist.However, in the opinion of the Court the undertaking in astandard form as relied upon by the Customs Departmentwaiving the issuance of show cause notice and personal hearingwould not satisfy the requirements of Section 124 of the Act.

27. This Court recently in Amit Kumar v. The Commissioner ofCustoms, 2025:DHC:751 DB was considering similar factswherein the Petitioner had also signed an undertaking waivingshow cause notice and personal hearing. The Court had analysedand discussed the validity of such undertaking vis-à-vis Section124 of the Act. [...]

28In view of the above observations, it is clear that theundertaking signed by the Petitioner in the present case cannotbe sustained in law. Accordingly, the Customs Department hasfailed to satisfy the requirements of Section 124 of the Act in thepresent case. Therefore, the detention of the Petitioner’s goldchain has to be set aside.

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34.Since, the Court has made clear that the practice of makingtourists sign undertaking in standard form waiving the showcause notice and personal hearing is contrary to the provisionsof Section 124 of the Act, hereinafter, the Customs Departmentis directed to discontinue the said practice. The CustomsDepartment is expected to follow the principles of naturaljustice in each case where goods are confiscated in terms ofSection 124 of the Act.”

9.Thus, the law is well settled, that the Customs Department cannot rely

on pre-printed waiver of SCN as the same would be contrary to therequirement of Section 124 of the Customs Act, 1962. In light of the abovediscussions, it is clear that the continued detention or seizure of goods by theCustoms Department would be untenable in law, where the SCN or thepersonal hearing have been waived via pre-printed waiver.

10.Section 110 of the Customs Act, 1962 itself is very clear that once thegoods are detained, it is mandatory to issue SCN and afford hearing to thePetitioner. The time prescribed under Section 110 of the Customs Act, 1962,is period of six months and subject to complying with the formalities, afurther extension for period of six months can be taken by the Departmentfor issuing the SCN.

11.On facts, the goods of the Petitioner were seized on 27[th]March 2024and more than one-year period itself has elapsed. Since no SCN has beenissued in the present case, the detention itself becomes untenable.

12.In the present case as also in several other cases, it is noticed thatwhenever person approaches the Court by filing writ petition, immediatelywithin the next two days, notice for personal hearing is issued despite no SCNhaving been issued.

13.Under such circumstances, the notice of personal hearing recentlyissued to the Petitioner would be of no help to the Customs Department to stopthe release of the detained goods.

14.In terms of the settled precedents, the gold chain would also clearlyconstitute as ‘personal effect’ of the Petitioner under the Baggage Rules,2016. Under such circumstances, all the three detained goods be released tothe Petitioner subject to payment of warehousing charges as would beapplicable on the date of detention.

15.The petition is disposed of in the aforesaid terms. Pending applications,if any, are also disposed of.

PRATHIBA M. SINGH, J.

JULY 31, 2025kk/ck

SHAIL JAIN, J.

W.P.(C) 10928/2025

This is digitally signed order.The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.The Order is downloaded from the DHC Server on 05/08/2025 at 12:16:08