W.P.(C)/5084/2025 of ASMIN Vs COMMISSIONER OF CUSTOMS

$~28*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of decision: 29[th]May, 2025

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTAPrathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The present writ petition has been filed under Article 226 of theConstitution of India seeking release of the jewellery detained by the CustomsDepartment vide Detention Receipt dated 11th February, 2024.

3.The Petitioner is an Indian citizen. It is stated that the Petitioner wasreturning to India from Mecca, Saudi Arabia after performing religiouspilgrimage (“Umrah”) on 11th February, 2024. The Customs Departmentintercepted her upon her arrival at the Indira Gandhi International Airport,New Delhi. The Petitioner was wearing two gold bangles weighing 128grams, respectively, (hereinafter “the detained jewellery”) which weredetained by the Customs Department.

4.It is the case of the Petitioner that the detained jewellery has not been

released till date. It is also stated that no show cause notice (hereinafter“SCN”) has been issued in this matter and no personal hearing was alsogranted.

5.Ms. Anushree Narain, ld. Sr. Standing Counsel for the CustomsDepartment submits that the Order-in-Original has been passed on 19[th]August, 2024. copy of the same has been handed over by the ld. Counseland the same is taken on record.

6.Heard ld. Counsels for the parties. The Court has also perused thedocuments as also the Order-in-Original placed on record. perusal of thesaid order would show that the standard pre-printed waiver had been signedby the Petitioner, as recorded in the order. The relevant paragraphs of theorder-in-original are set out below:

“2.ThepassengerAsmin(DOB01.01.1966)(hereinafter referred as 'the Pax') having IndianPassport Number B8448601 arrived at IGI AirportTerminal-3, New Delhi by the Flight No. SV 756 Dated11.02.2024 and opted for Green Channel and she wasintercepted by the Customs Officer after she had crossedthe Green Channel and during the X-Ray of her baggageand DFMD "Two yellow metal bangles, weight 128grams" were found and the same were detained videDetentionReceipt(DR)DR/INDEL4/11.02.2024/28021 dt. 11.02.2024. The DRbears remark "Green Channel Violation".3. The Pax tendered her statement dated 11.02.2024under Section 108 of the Customs Act, 1962 in which sheadmitted that she had arrived at IGI Airport Terminal-3, New Delhi by Flight No. SV 756 Dated 11.02.2024;that she was intercepted by the Customs Officer aftershe had crossed the Green Channel and during X-Rayof her baggage and DFMD "Two yellow metal bangles,weight 128 grams" were recovered from her. The Pax

in her statement dated 11.02.2024 stated that the saidgoods did not belong to her. She admitted her acts ofomission and commission; that she is well aware of thefact that there is Customs duty on import of abovegoods; that she intentionally did not declare therecovered goods; that she agreed with the description,quantity and value assessed by the Department; that shehad tendered her true & correct statement andunderstood the same in vernacular; that on being asked,she admitted the act of omission and commission on herpart. She further stated that she had tendered herstatement without any duress, pressure or threat.Further, she requested that she did not require any ShowCause Notice and Personal Hearing and the case maybe decided on merit.

4.TheARAdvocateManoharLalVerma(D/14802/2023) of The Pax Asmin visited this office andsubmitted letter dated 13.03.2024 wherein shesubmitted that she had arrived at IGI Airport, Terminal-3, New Delhi by Flight No. SV 756 Dated 11.02.2024and brought the above said detained goods. She furtherrequested that the said detained goods may please beappraised and release to her after observing necessarylegal formalities. The Pax regretted her mistake ofopting for Green Channel and also requested for lenientview in the matter. She is ready to pay the applicableCustoms Duty, fine and penalty for the same after takinglenient view as these goods does not belong to her andwere meant for personal use. She did not want anyShow Cause Notice and Personal Hearing in thematter and requested for order for release. Shesubmitted that she departed from India on 22.01.2024and returned on 11.02.2024.

5. On physical examination of the detained goods by theJewellery Appraiser in the presence of AR of the Pax on13.03.2024, it was found that detained goods compriseof "Two gold bangles having purity 996, weight 128

grams, valued at Rs. 7,44,582/-". Accordingly, for thepurposeofdeterminationofthecompetencyofAdjudicating Authority, the detained goods have beenappraised and the valuation of the detained goods hasbeen accomplished on 13.03.2024 by taking 11.02.2024(as the relevant date), which is the correct date ofdetention of goods and facts admitted by the Pax in herstatement, as the relevant date for appraisal of detainedgoods.

7.Value has been determined in terms of the following notifications:

8.From perusal of the above paragraphs, it appears that the authorisedrepresentative of the Petitioner had appeared for the Petitioner before theCustoms Authority. The order-in-original has finally directed absoluteconfiscation and payment of fine and penalty of Rs.1,00,000/-.

9.The same is set out below:

“31. In view of the foregoing, I pass the followingorder:

ORDER

i) I deny the 'Free Allowance' if any admissible to thePax Ms Asmin for not declaring the detained goods tothe Proper Officer at Red Channel as well to theCustoms Officer at Green Channel who intercepted herand recovered the detained goods from her.

ii) I declare the passenger, Asmin an "ineligiblePassenger" for the purpose of the Notification No.50/2017-Cus dated 30.06.2017 (as amended) read withBaggage Rules, 2016 (as amended).

iii) I order absolute confiscation of the above saiddetained goods i.e. "Two gold bangles having purity996, weight 128 grams, valued at Rs. 7,44,582/-"recovered from the Pax Asmin and detained vide DR No.DR/INDEL4/11.02.2024/28021 dt. 11.02.2024, underSection 111(d), 111(i), 111(j) & 111(m) of the CustomsAct, 1962;

iv) I also impose penalty of Rs.1,00,000/- (RupeesOne Lac Only) on the Pax, Asmin under Section 112(a)& 112(b) of the Customs Act, 1962.”

10.It is noted that no Show Cause Notice has been issued in this case asthe Customs Department is relying on the standard pre-printed waiver thatwas obtained from the Petitioner. The validity of such pre-printed waiver ofSCN and personal hearing has been considered by this Court in variousmatters, including in Amit Kumar v. The Commissioner of Customs,2025:DHC:751-DB and Mr Makhinder Chopra vs Commissioner ofCustoms New Delhi, 2025:DHC:1162-DB. The operative portion of thejudgement in Amit Kumar (supra) is 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 this

manner 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.

17. The three-pronged waiver which the form containsis not even decipherable or comprehensible to thecommon man. Apart from agreeing as per the said formthat the oral SCN has been served, the person affectedhas also waived right for personal hearing. Such aform in fact shocks the conscience of the Court, that tooin cases of the present nature where travellers/touristsare made to run from pillar to post for seeking releaseof detained goods.

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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”

11.Further, this Court in Makhinder Chopra (supra) had analysedSection 124 of the Customs Act, 1962 (hereinafter “the Act”) while

considering the issue of waiver of show cause notice and personal hearing.The Court while replying on the decision in Amit Kumar (supra) held asunder:

“23. As mentioned above, the Customs Department hasrelied upon the undertaking in standard form dated17th June, 2024 signed by the Petitioner, wherein thePetitioner has waived of issuance of the show causenotice and personal hearing. It is admitted position thatno show cause notice has been issued to the Petitioneron the basis of the said undertaking.

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.Issueofshowcausenoticebeforeconfiscation of goods, etc.— No order confiscatingany goods or imposing any penalty on any personshall be made under this Chapter unless the ownerof the goods or such person—

(a) is given notice in writing with the priorapproval of the officer of Customs not belowthe rank of an Assistant Commissioner ofCustoms, informing him of the grounds onwhich it is proposed to confiscate the goodsor to impose penalty;approval of the officer of Customs not belowthe rank of an Assistant Commissioner ofCustoms, informing him of the grounds onwhich it is proposed to confiscate the goodsor to impose penalty;

(b) is given an opportunity of making arepresentationinwritingwithinsuchreasonable time as may be specified in thenotice against the grounds of confiscation orimposition of penalty mentioned therein; and

(c) is given reasonable opportunity of beingheard in the matter:

Provided that the notice referred to in

clause (a) and the representation referredto in clause (b) may, at the request of theperson concerned be oral.

Provided further that notwithstandingissue of notice under this section, theproper officer may issue supplementarynotice 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 groundsof confiscation;

ii)Anopportunityofmakingarepresentation in writing against the saidgrounds of confiscation;

iii) reasonable opportunity of personalhearing.

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 therequest of the said tourist.However, in the opinion ofthe Court the undertaking in standard form as reliedupon by the Customs Department waiving the issuanceof show cause notice and personal hearing would notsatisfy the requirements of Section 124 of the Act.

27. This Court recently in Amit Kumar v. TheCommissioner of Customs, 2025:DHC:751 DB wasconsidering similar facts wherein the Petitioner hadalso signed an undertaking waiving show cause noticeand personal hearing. The Court had analysed and

discussed the validity of such undertaking vis-à-visSection 124 of the Act. [...]

28In view of the above observations, it is clear that theundertaking signed by the Petitioner in the presentcase cannot be sustained in law. Accordingly, theCustomsDepartmenthasfailedtosatisfytherequirements of Section 124 of the Act in the presentcase. 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 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 todiscontinuethesaidpractice.TheCustomsDepartment is expected to follow the principles ofnaturaljusticeineachcasewheregoodsareconfiscated in terms of Section 124 of the Act.”

12.Thus, the law is well settled, that the Customs Department cannot relyon pre-printed waiver of show cause notice as the same would be contrary tothe requirements of Section 124 of the Act. In light of the above discussions,it is clear that the continued detention or seizure of goods by the CustomsDepartment would be untenable in law, where the show cause notice or thepersonal hearing have been waived via pre-printed waiver.

13.Accordingly, in the facts of this case, since no show cause notice hasbeen issued to the Petitioner due to pre-printed waiver, the detainedjewellery would be liable to be released to the Petitioner.14.In view thereof, the impugned order-in-original is set aside to the effect

that it orders absolute confiscation. However, in the facts of this case, thePetitioner shall pay the penalty of Rs.1,00,000/- and 50% of thewarehousing/storage charges.

15.The Petitioner may collect the detained jewellery through anAuthorised Representative, in which case, the detained jewellery shall bereleased after receiving proper email from the Petitioner or some form ofcommunication that the Petitioner has no objection to the same being releasedto the concerned Authorised Representative.

16.Let the detained jewellery be released within period of four weeks.

17.Accordingly, the petition stands disposed of. Pending applications, if

any, are also disposed of.

PRATHIBA M. SINGHJUDGE

MAY 29, 2025v/msh

RAJNEESH KUMAR GUPTAJUDGE