W.P.(C)/13169/2025 of SANDEEP Vs COMMISSIONER OF CUSTOM AND ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 13169/2025SANDEEP

.....Petitioner

Through:Mohd. Mazhar Siddiqui, Md. AtherAnsari and Mr. S. Vijay Kant, Advs.(M:[REDACTED])

versus

COMMISSIONER OF CUSTOM AND ORS......RespondentsThrough:Mr. Atul Tripathi, SSC with Mr. GauravMani Tripathi & Mr. Shubham Mishra,Advs.

CORAM:

JUSTICE PRATHIBA M. SINGHJUSTICE SHAIL JAINO R R%28.08.2025

1.This hearing has been done through hybrid mode.

2.The present petition has been filed by the Petitioner - Mr. Sandeep,who is resident of Morocco holding residence card of the said country andhad travelled from New Delhi to Dubai on 6th April, 2024.

3.Upon the Petitioner’s arrival in New Delhi, two gold articles, being onegold kada weighing 50 grams and one gold chain weighing 35 grams(hereinafter, ‘detained articles’) were seized and detained after appraisement.The case of the Petitioner is that the detained articles are his personal effectsand thus, he has sought release of the same.

4.The Petitioner, challenges the order in original dated 4th July, 2024(hereinafter, ‘the impugned order’), wherein absolute confiscationandpenalty of Rs.60,000/- has been directed in the following terms.

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“ORDER

i) I deny the ‘Free Allowance’ if any, admissible to thePax Sandeep for not declaring the detained goods to theProper Officer at Red Channel as well to the CustomsOfficer at Green Channel who intercepted him andrecovered the detained goods from him.

ii) I declare the passenger Sandeep as an “ineligiblePassenger” for the purpose of the Notification No.50/2017-Customs dated 30.06.2017 (as amended) readwith Baggage Rules, 2016 (as amended).

(iii) — I order absolute confiscation of:

(i) One gold kada having average purity 996 with grossand net weight 50 grams having Assessable valueRs.3,20,256/-

(ii) One gold chain having average purity 996 withgross and net weight 35 grams having Assessable valueRs.2,24,179/-

(iii) The total weiyht of the gold items is 85 grams andthe total Assessable value is Rs.5,44,434/-

recovered from the Pax Sandeep and detained vide DRNo. 52505 dated 06.04.2024 under section 111(d), 111

(i), 111(j) and 111(m) of the Customs Act, 1962;

iii) I also impose penalty of Rs. 60,000/- (Rupees SixtyThousand Only) on the Pax Sandeep under section 112

(a) and 112(b) of the Customs Act, 1962.”

5.Upon the detention of the articles, the Petitioner confirmed that an oralshow cause notice had been received but no personal hearings were affordedto him. The same has also been recorded in the impugned order in thefollowing terms:

“4. Mr. Mohammed Ather, Advocate having EnrolmentNo.2999/09visitedthisofficeandsubmittedan

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Authority Letter/Special Power of Attorney dated15.04.2024 on behalf of the Pax. Mr. Mohammed Ather,Advocate (hereinafter referred to as the AR of the Pax)has his residence address as Near 788 Biri Factory,Mohalla Gher Pachchaiyan, Amroha, PO Amroha Distt,Uttar Pradesh. The AR of the Pax submitted requestletter dated: 24.04.2024 for Re-export of the detainedgoods. It is further inter alia submitted that the pax hadarrivedfrom Dubaiby flight no.IX-136 dated05.04.2024 and opted for the Green Channel but did notdeclare any dutiable item which he brought in hisbaggage namely Gold jewellery and hence they weredetained. It is further submitted that the detained goodsare meant for personal use and as such requested forRe-Export of the detained goods.It is also submittedthat the Pax regrets his mistake of opting for GreenChannel and requested for lenient view to be takenin the matter and that the case be decided on merit andas such did not want any show cause notice andpersonal hearing in the matter. An oral SCN has beenreceived.The AR of the Pax has submitted AttestedPhoto Copy of the following, which is Notarised, as arelevant document for Re-export of the said detaineditem:-

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6.Ld. Counsel for the Petitioner submits that the Petitioner had alreadymade request for re-export of detained articles on 24[th]April, 2024 itself, butthe same was not considered.

7.It is noticed that the impugned order has been passed, stating that thePetitioner had waived of SCN and personal hearing. Such waiver of hearingwould not be in accordance with law as the same is usually on the basis of apre-printed form. This Court has held repeatedly that standard pre-printedwaivers of Show Cause Notice and personal hearing would not be valid in lawas held in Amit Kumar v. The Commissioner of Customs, 2025:DHC:751-DB. The relevant portion of the said order reads as under:

“16.A perusal of Section 124 of the Act along with thealleged waiver which is relied upon would show that theoral SCN cannot be deemed to have been served in thismanner as is being alleged by the Department. If an oralSCN waiver has to be agreed to by the person concerned,the same ought to be in the form of proper declaration,consciously signed by the person concerned. Even then,an opportunity of hearing ought to be afforded,inasmuchas,thepersonconcernedcannotbecondemned unheard in these matters. Printed waivers ofthis nature would fundamentally violate rights ofpersons who are affected. Natural justice is not merely-lipservice. It has to be given effect and complied with inletter and spirit.

17. The three-pronged waiver which the form contains isnot even decipherable or comprehensible to the commonman. Apart from agreeing as per the said form that theoral SCN has been served, the person affected has alsowaived right for personal hearing.Such form in factshocks the conscience of the Court, that too in cases ofthe present nature where travellers/tourists are made to

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run from pillar to post for seeking release of detainedgoods.

19.This Court is of the opinion that the printed waiverof SCN and the printed statement made in the request forrelease of goods cannot be considered or deemed to be anoral SCN, in compliance with Section 124. The SCN inthe present case is accordingly deemed to have not beenissued and thus the detention itself would be contrary tolaw. The order passed in original without issuance of SCNand without hearing the Petitioner, is not sustainable inlaw. The Order-in-Original dated 29th November, 2024 isaccordingly set-aside.”

8.Further, this Court in Mr Makhinder Chopra vs Commissioner ofCustoms New Delhi, 2025:DHC:1162-DB had analysed Section 124 of theCustoms Act, 1962 (hereinafter “the Act”) while considering the issue of waiverof show cause notice and personal hearing. The Court while relying on thedecision in Amit Kumar (supra) held as under:

“24. The issuance of show cause notice beforeconfiscation of goods by the Customs officials is coveredunder Section 124 of the Act, which reads as under:“124. Issue of show cause notice before confiscation ofgoods, etc.— No order confiscating any goods or imposingany penalty on any person shall be made under thisChapter unless the owner of the goods or such person—(a) is given notice in writing with the prior approval ofthe officer of Customs not below the rank of an AssistantCommissioner of Customs, informing him of the groundson which it is proposed to confiscate the goods or toimpose penalty;

(b) is given an opportunity of making representation inwriting within such reasonable time as may be specified in

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the notice against the grounds of confiscation orimposition of penalty 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 requestof the person concerned be oral.

Provided further that notwithstanding issue of noticeunder this section, the proper officer may issue asupplementary notice under such circumstances and insuch manner as may be prescribed.”

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

i) notice in writing informing the grounds ofconfiscation;ii) An opportunity of making representation in writingagainst the said grounds of confiscation;iii) reasonable opportunity of personal hearing.

26. In terms of proviso to the said Section, the CustomsAuthority may issue an oral show cause notice to thetourist in lieu of written show cause notice at the requestof the said tourist.However, in the opinion of the Courtthe undertaking in standard form as relied upon by theCustoms Department waiving the issuance of show causenotice and personal hearing would not satisfy therequirements of Section 124 of the Act.

27.ThisCourtrecentlyinAmitKumarv.TheCommissioner of Customs, 2025:DHC:751 DB wasconsidering similar facts wherein the Petitioner had alsosigned an undertaking waiving show cause notice andpersonal hearing. The Court had analysed and discussed

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the validity of such undertaking vis-à-vis Section 124 ofthe Act. [...]

28 In view of the above observations, it is clear that theundertaking signed by the Petitioner in the present casecannot be sustained in law. Accordingly, the CustomsDepartment has failed to satisfy the requirements ofSection 124 of the Act in the present case. Therefore, thedetention of the Petitioner’s gold chain has to be set aside.[...]

34.Since, the Court has made clear that the practice ofmaking tourists sign undertaking in standard formwaiving the show cause notice and personal hearing iscontrary to the provisions of Section 124 of the Act,hereinafter, the Customs Department is directed todiscontinue the said practice. The Customs Departmentis expected to follow the principles of natural justice ineach case where goods are confiscated in terms ofSection 124 of the Act.”

9.Accordingly, in view of the settled law discussed above the detainedarticles would be liable to be released on this ground itself.

10.Moreover, the Petitioner, being resident of Morocco and the fact thatthe detained articles would also constitute his personal effects, the same shallbe released.

11.In view of the legal position as discussed above, the impugned order isset aside.

12.The items shall now be released to the Petitioner for the purpose of re-export upon the payment of warehouse charges, as applicable on the date ofdetention. In respect of the same, let the Petitioner contact the followingofficer who shall assist the Petitioner with the requisite procedure:

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Officer: Mr. Sandeep Lamba, Superintendent, CustomsAddress: Office of Commissioner, Customs, IGI Airport,

Terminal - 3, New Delhi

Mob. No: [REDACTED]Email: [REDACTED]

13.The petition is disposed of in the above terms. Pending applications, ifany, are also disposed of.

PRATHIBA M. SINGH, J.

AUGUST 28, 2025/dk/ss

SHAIL JAIN, J.

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