W.P.(C)/7297/2025 of MOHD ABID Vs COMMISSIONER OF CUSTOMS

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 29[th]May, 2025

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 writ petition has been filed by the Petitioner-Mohd Abidunder Article 226 of the Constitution of India inter alia seeking direction tothe Customs Department to release the goods being two gold banglesweighing about 58 grams (hereinafter, ‘the detained articles’), belonging tothe Petitioner, detained vide Detention Receipt dated 5[th]April, 2024.

3.It is the case of the Petitioner that he was travelling to India fromJeddah, Saudi Arabia after staying there for six months. The Petitioner is alsoemployed in Jeddah, Saudi Arabia.

4.On the last date, i.e., 26[th]May, 2025, ld. Counsel for the CustomsDepartment had sought time to seek instructions in the matter.

5.Today, ld. Counsel for the Customs Department submits that the Order-

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in-Original dated 21st August, 2024 has already been passed in this matter. Aperusal of the same shows that no show cause notice (hereinafter, ‘SCN’) wasissued in the matter and no personal hearing has also been granted. Relevantparagraphs of the Order-in-Original dated 21st August, 2024 reads as under:-

“2. The passenger Mohd Abid (DOB 01.01.1992)(hereinafter referred as the Pax') arrived from Jeddahto IGI Airport Terminal-3, New Delhi by the Flight No.SV 758 Dated 05.04.2024 and opted for Green Channeland he was intercepted by the Customs Officer after hehad crossed the Green Channel and during the X-Ray ofhis baggage and DFMD "Two yellow metal kada,weight 58 grams" were found and the same weredetainedvideDetentionReceipt(DR)DR/INDEL4/05.04.2024/52590 dt. 05.04.2024. The DRbears remark "Green Channel Violation".

3. The Pax tendered his statement dated 05.04.2024under Section 108 of the Customs Act, 1962 in which headmitted that he had arrived from Jeddah to IGI AirportTerminal-3, New Delhi by Flight No. SV 758 Dated05.04.2024; that he was intercepted by the CustomsOfficer after he had crossed the Green Channel andduring X-Ray of his baggage and DFMD "Two yellowmetal kada, weight 58 grams" were recovered from him.The Pax in his statement dated 05.04.2024 stated thatthe said goods belonged to him. He admitted his acts ofomission and commission; that he is well aware of thefact that there is Customs duty on import of abovegoods; that he intentionally did not declare therecovered goods; that he agreed with the description,quantity and value assessed by the Department; that hehad tendered his true & correct statement andunderstood the same in vernacular; that on being asked,he admitted the act of omission and commission on hispart. He further stated that he had tendered hisstatement without any duress, pressure or threat.Further, he requested that he did not require any Show

Cause Notice and Personal Hearing and the case maybe decided on merit.4. The AR Advocate Miss Fatima Bano (D/4293/2016)of The Pax Mr. Mohd Abid visited this office andsubmittedaletterdated26.04.2024whereinhesubmitted that he had arrived from Jeddah to IGIAirport, Terminal-3, New Delhi by Flight No. SV 758Dated 05.04.2024 and brought the above said detainedgoods. He further requested that the said detained goodsmay please be appraised and release to him afterobservingnecessarylegalformalities.ThePaxregretted his mistake of opting for Green Channel andalso requested for lenient view in the matter. He is readyto pay the applicable Customs Duty, tine and penalty forthe same after taking lenient view as these goods belongto him and were meant for personal use. He did not wantany Show Cause Notice and Personal Hearing in thematter and requested for order for release. He submittedthat he departed from India on 09.10.2023 and returnedon 05.04.2024.”

6.As observed in the Order-in-Original dated 21st August, 2024, ld.Counsel for the Petitioner had appeared before the Customs Department andhad submitted letter dated 26th April, 2024.

7.A perusal of the Order-in-Original dated 21st August, 2024 also showsthat absolute confiscation of the detained articles was directed by the CustomDepartment and penalty of Rs. 55,000/- has also been imposed on thePetitioner.

8.In the opinion of this Court, considering the weight of the gold and thefact that no SCN was issued after the seizure of the Petitioner’s detainedarticles, the Order-in-Original in itself, is not sustainable.

9.Moreover, after perusing the Order-in-Original and the directions giventherein, it clearly appears that this was not case of absolute confiscation of

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items.

10.It is noted that no SCN has been issued in this case as the CustomsDepartment is relying on the standard pre-printed waiver that was obtainedfrom the Petitioner. The validity of such pre-printed waiver of show causenotices 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 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.

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”) whileconsidering the issue of waiver of show cause notice and personal hearing.The Court while relying on the decision in Amit Kumar (supra) held as under:

“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. Issue of show cause notice before confiscation ofgoods, etc.— No order confiscating any goods orimposing any penalty on any person shall be madeunder this Chapter unless the owner of the goods or suchperson—

(a) is given notice in writing with the prior approvalof the officer of Customs not below the rank of an

Assistant Commissioner of Customs, informing him ofthe grounds on which it is proposed to confiscate thegoods or to impose penalty;

(b) is given an opportunity of making representationin writing within such reasonable time as may bespecifiedinthenoticeagainstthegroundsofconfiscation or imposition of penalty mentioned therein;and

(c) is given reasonable opportunity of being heard inthe matter:

Provided that the notice referred to in clause (a) and therepresentation referred to in clause (b) may, at therequest of 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 inwriting against 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 therequest of the said tourist.However, in the opinion of

the 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 anddiscussed 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 requirement of Section 124 of the Act. In light of the above discussions, itis clear that the continued detention or seizure of goods by the Customs

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Department 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 detention is setaside. The detained articles would be liable to be released to the Petitioner.14.The Order-in-Original dated 21st August, 2024 is also set aside. Thedetained articles shall be released to the Petitioner, subject to payment ofCustom Duty without any penalty or fine.

15.The warehouse charges are waived off. Let the Petitioner appear beforethe Custom officials on 10[th]June, 2025 for collecting the detained articles.

16.The Petitioner may collect the detained articles personally or throughan Authorised Representative, in which case, the articles shall be releasedafter 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.

17.Accordingly, the present writ petition is disposed of in above terms. Allthe pending applications, if any, are also disposed of.

MAY 29, 2025/kk/ss

PRATHIBA M. SINGHJUDGERAJNEESH KUMAR GUPTAJUDGE

W.P.(C) 7297/2025