W.P.(C)/4538/2025 of JAVED ALAM Vs COMMISSIONER OF CUSTOMS

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 09[th]April, 2025

+W.P.(C) 4538/2025

JAVED ALAM.....PetitionerThrough:Ms. Richa Kumari, Mr. Yatin Bhutani& Mr. Pawan, Advs.

versus

COMMISSIONER OF CUSTOMS.....RespondentThrough:Mr. Aditya Singla, SSC with Mr.Ritwik Saha & Mr. Siddharth Saxena,Advs.

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTA

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The present petition has been filed by the Petitioner- Javed Alam underArticle 226 of the Constitution of India, inter alia, seeking release of the goodsseized by the Respondent- Commissioner of Customs vide Detention ReceiptNo. 26696 dated 20th September, 2024. (New Detention Receipt Nos.- 43647dated 21st October, 2024 and 36205 dated 6th November, 2024 respectively.)The Petitioner also seeks to challenge the Order-in-Original bearing no.2166/26696/20.09.2024/WII/2024-25 dated 15[th]January, 2025.

3.The Petitioner is an Indian citizen who was travelling from Dubai.According to the Petitioner, there was wedding in the family for which hepurchased various gift items in Dubai and he passed through the Red Channelat the IGI Airport, New Delhi when he arrived on the intervening night of 19[th]

/ 20[th]September, 2024. The list of the goods seized by the Respondent are asfollows (hereinafter, ‘goods’):

23 pieces of branded mufflers.

13 pieces of Pashmina/ Shahtoosh Shawls

44 pieces of branded clothes

2 Johnnie Walker Blue label bottles

4.According to the Petitioner, despite him having gone to the RedChannel, he was made to wait for more than six hours and instead of askinghim to pay the duty, the goods of the Petitioner were detained. The Petitioneralso claims that statement under Section 108 of the Customs Act, 1962 wasrecorded forcefully by the Customs Department.

5.The first and second appraisal of the goods has been done. The Order-in-Original dated 15th January 2025 has been passed by which the freeallowances are rejected and absolute confiscation of all the goods has beendirected. Further, penalty of Rs.1,60,000/- is imposed upon the Petitioner.

6.The case of the Petitioner is that no Show Cause Notice (hereinafter,‘SCN’) was served upon the Petitioner and no personal hearing was granted.

7.Ld. Senior Standing Counsel for the Respondent submits that theOrder-in-Original records that the Petitioner was passing through the GreenChannel.

8.The Court has perused the Order-in-Original dated 15th January 2025.Paragraph 3 of the Order-in-Original records that no SCN was issued and nopersonal hearing was granted to the Petitioner. It appears that standardformat waiver was signed by the Petitioner.

9.In view of the declared law by this Court in Amit Kumarv. TheCommissioner of Customs, (2025: DHC: 751-DB) and the judgments which

followed the same, such standard form waivers of SCN or personal hearingshave no validity in the eyes of law. The relevant portion of the said judgmentreads as under:

“16. 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 personconcerned, the same ought to be in the form of properdeclaration,consciouslysignedbythepersonconcerned. Even then, an opportunity of hearing oughtto be afforded, inasmuch as, the person concernedcannot be condemned unheard in these matters. Printedwaivers of this nature would fundamentally violaterights of persons who are affected. Natural justice is notmerely lip-service. It has to be given effect and compliedwith in letter and spirit.

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19. This Court is of the opinion that the printed waiverof SCN and the printed statement made in the requestfor release of goods cannot be considered or deemed tobe an oral SCN, in compliance with Section 124. TheSCN in the present case is accordingly deemed to havenot been issued and thus the detention itself would becontrary to law.The order passed in original withoutissuance of SCN and without hearing the Petitioner, isnot sustainable in law. The Order-in-Original dated29th November, 2024 is accordingly set-aside.”

10.In view of the above, the impugned Order-in-Original dated 15thJanuary, 2025 is set aside.11.The Petitioner shall be afforded hearing before the concerned official.

12.Let the Petitioner file written submissions along with all the necessarydocuments, if any, which he wishes to rely upon before the AdjudicatingAuthority.

13.The matter shall be heard by the concerned official and since thePetitioner is willing to pay the customs duty, the customs duty shall bedetermined and the order shall be passed by the Adjudicating Authority inaccordance with law within period of two months after the hearing.

14.Let notice of hearing be given to the Petitioner on the followingmobile number and email address as also to the ld. Counsel for the Petitioner:

Mr. Javed Alam (Mob No. [REDACTED])

Ms. Richa Kumar, Adv. (Mob. No. [REDACTED], email address:[REDACTED])[REDACTED])

15.Petition is disposed of in these terms. All pending applications, if any,are also disposed of.

PRATHIBA M. SINGHJUDGE

APRIL 9, 2025Rahul/ck

RAJNEESH KUMAR GUPTAJUDGE