Customs, Excise and Gold Tribunal - Mumbai
Nayankumar P. Shah vs Additional Collector Of Customs on 24 March, 1992
Equivalent citations: 1993(63)ELT311(TRI-MUMBAI)
ORDER R. Jayaraman, Member (T)
1. This appeal is directed against the Order-in-Original No. S/14-7-1/86, dated 3-4-1987 passed by the Additional Collector of Customs (P), Bombay.
2. Facts of the case can be briefly stated as under :-
When the appellant arrived at Bombay Airport on 19-1-1986, on his return from Hongkong, the Air Customs Officers, on suspicion carried out a personal search of the appellant after getting his declaration and as a result of this search, they recovered two paper packets of diamonds from his left and right sides of the pant, kept in specially made packets. It is alleged that the appellant did not declare the diamonds, despite questioning on this aspect. In his statement given after the seizure, he admitted that he carried the diamonds and attempted to pass through Customs without declaration, and further pleaded guilty and sought to be excused. He also claimed that these diamonds were brought by him, because they were rejected by the Hongkong buyer Gijon Ltd., out of the lots exported by the firm, in which the appellant and his brother Shri Anil P. Shah were the partners. He also admitted that he was aware that bringing such diamonds without Reserve Bank permit and I.T.C. clearance was prohibited. Subsequently investigation and searches were carried out in various premises and the statements of various persons including the brother Shri Anil P. Shah were recorded. After investigation, Show Cause Notice was issued by the Department to the appellant and his brother Shri Anil P. Shah. The said notices were sent by Registered Post A.D. on 17-7-1986, but claimed to have been received by the appellant on 23-7-1986. In the adjudicating proceedings held by the Additional Collector, he ordered absolute confiscation of cut and polished diamonds weighing 579.93 carats valued at Rs. 15.73 lakhs and imposed a panalty of Rs. 5/- lakhs on the appellant. The proceedings against Shri Anil P. Shah were however dropped.
The present appeal is from Shri Nayankumar Shah, the appellant herein, against the said order.
3. The main tenets of the arguments of the Learned Advocate and those contained in the appeal memorandum can be summed up as below :-
(i) The Show Cause Notice was given to the Appellant after six months and no notice has been given to the partnership firm, in which he and his brother are partners, who have claimed ownership of the seized diamonds. Hence the diamonds are liable to be returned. Since the notice was given only after six months, the appellant has acquired a civil right to the return of the property as per Section 110(2) of the Customs Act. Section 110 contemplates "Service being given" and "not issued". The Supreme Court have held that where the notice is to be given, it should actually reach the hands of the person (A.I.R. 1966 SC 330).
(ii) The Show Cause Notice given to Shri Anil P. Shah was only, in his capacity as an individual or as Karta of the Hindu undivided family and not as a partner or Agent on behalf of the partnership firm, which has claimed ownership of the diamonds seized.
(iii) The statement of the appellant given on 19-1-1986 after seizure of diamonds from his person could not be relied upon and the statement is subsequently retracted. It is not a confession before the Magistrate.
(iv) The diamonds seized were returned goods, having been rejected by the foreign buyer, which were received by the appellant, during his visit to Hongkong and brought with him. Since they are of Indian origin, having been exported out of India earlier and re-imported they are to be governed by the provisions of Section 20 of the Customs Act. It cannot be said to attract import licence, because of clause 11(j) of the I.T.C. Order 1955, since it comes within the provisions of Section 20 of the Customs Act. The claim that the diamonds are rejected ones by the foreign buyer was made by the appellant on the day of seizure itself and such a claim is also duly supported by the documents such as (i) letter from the partnership firm claiming ownership, (ii) Appellate Order of the Income Tax Authorities, (iii) defence filed by the foreign buyer in the court at Hongkong on 8-2-1990. Hence not following the prescribed procedure is only a technical violation and does not call for penal proceedings.
(v) Citations were made in support of the above contentions.
4. In reply, Smt. Lipika Majumdar, the Ld. SDR stated as below :-
(a) There is no dispute that the Show Cause Notice was issued to the appellant and his brother (who are the only two partners of the firm claiming ownership of the diamonds) on 17-7-1986 by R.P.A.D. The postal receipts thereof also have been verified by the Adjudicating Authority. The addresses, being local, the said notice can be reasonably presumed to have been actually received on 18-7-1986 or 19-7-1986 and not on 23-7-1986, as claimed by the appellant. Sending the notice by R.P.A.D. is also one of the modes of serving the notice prescribed under Section 153 of the Customs Act. If the appellant, for reasons known to him, avoids receiving the notice or delays receiving the notice, that date cannot be taken as date of service. The date of service is the date on which the notice has been sent by R.P.A.D. and has left the hands of the Dept. It cannot be expected that the Act envisages the Dept. chasing the parties for service of notice to all the nook and corner of the country. That is why the manner of service of notice is specifically prescribed under the Customs Act in Section 153 thereof. She therefore contended that the service has been made accordingly within six months. No evidence is also forthcoming that the appellant received the notice only on 23-7-1986 and not earlier, [expecting] his own averment.
(b) As regards the alleged claim of ownership of diamonds by the firm, she referred to the inconsistency in the stand of the appellant. While the appellant claims that his statement dated 19-1-1986 given immediately after seizure is not voluntary, he chooses to rely on this very same statement for supporting the claim that the diamond belongs to his firm and were earlier exported by the firm. When the other partner namely his brother was specifically questioned on that, he denies any knowledge about this. Hence the subsequent court proceedings and defence statement in the court proceedings are all in a vain attempt to buttress this claim and do not have any nexus with the diamonds seized.
(c) The order of the Income Tax authorities cannot come to support the claim, because the diamonds were seized from the possession of the appellant and there are no evidences produced showing their reimport either at the time of seizure or thereafter, within a reasonable time. Moreover Section 20 requirements are mandatory and are not merely procedural. Section 20 (1) requires the same treatment being meted out even to goods of Indian origin as those of foreign origin on their importation. Only proviso thereof prescribes conditionalities for establishing the identity of the goods imported with the exported goods. Hence if this mandatory condition is not fulfilled, benefit under the proviso to Section 20 cannot be claimed and this requirement cannot be dismissed as a mere technicality.
(d) Finally, she pleaded that the undisputed position is that diamonds (whether of Indian or foreign origin) were brought concealed by the appellant, while returning from abroad and he did not declare this before Customs and hence such an attempt is a clear case of smuggling and the goods attempted to be smuggled are liable for confiscation. The goods involved are diamonds (a sensitive item in the smuggler's shopping list) and hence Section 123 of the Customs Act prescribes the burden of proof being cast on the parties. Considering the value of the diamonds sought to be smuggled, the penalty imposed is not excessive and does not call for any modification. She pleaded for rejection of the appeal.
5. After hearing both the sides, we, first, would like to examine the issue from the undisputed factual position. It is an undisputed fact that when the appellant was returning from Hongkong, the Air Customs Officers recovered the diamonds on personal search of the appellant, as is evident from the panchnama for the seizure of the diamonds. This panchnama has not been challenged and the contents of the panchnama clearly indicate that the appellant did not declare the diamonds when specifically questioned and thereafter on his personal search, the diamonds were recovered. Though in his statement given immediately after seizure on 19-1-1986, he admitted to this position, he has chosen to retract this stand, by saying that he voluntarily declared the diamonds. All the same, he stands by the same statement dated 19-1-1986, when it pertains to the claim of bringing the rejected diamonds. Thus it becomes difficult to believe his subsequent version to the effect that his statement dated 19-1-1986 was not a voluntary one. In any case, the panchnama, which remains undisputed, clearly indicates the sequence of happenings before recovery and that establishes non-declaration and recovery only after personal search. Such a case would fall in the category of outright smuggling of diamonds simpliciter and no other supporting data is called for to decide on this issue. Hence the diamonds, which were attempted to be smuggled without declaration to the customs are liable to be confiscated and the person, who attempted at this act, is liable for penalty. We would have completed the order with this finding. But, when other arguments are advanced, claiming redemption on the ground of re-importation, non-service of notice within six months and hence the acquisition of civil right for restoration of property and the claim of the firm as owner of diamonds which have been brought into the country on account of rejection by foreign buyer, in all fairness, we are to consider them for their acceptability or otherwise.
6. Now, we first deal with the ground of non-service of Show Cause Notice within six months. We do not have any difficulty in accepting the legal proposition cited by the Ld. Counsel that 'giving' notice does not mean mere 'issue' of notice, as propounded by the Hon'ble Supreme Court in the case law cited by him. But, here, manner of service of notice is prescribed under Section 153 of the Customs Act, which reads as below.
"Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served -
(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent, or
(b) if the order, decision, summons or notice, cannot be served in the manner provided in Clause (a), by affixing it on the notice-board of the customs house, (emphasis supplied) Viewed in the context of the specific manner of service of the notice as laid down in Section 153 of the Customs Act, it cannot be taken that giving notice should be done only by tendering notice in person. It also covers sending it by registered post and only if the notice cannot be served in any of the two ways as above, by exhibiting it on the notice board of the Custom House. Hence when the admitted position is that the notice has been sent by R.P.A.D. on 17-7-1986, the notice has been given on that date and there is no further requirement of chasing the appellant for a personal service within the stipulated date. This is what has been held by the Kerala High Court in the case of C.D. Govinda Rao reported in 1982 (10) E.L.T. 270 (Ker.). Though that decision is with regard to notice issued within the Gold (Control) Act, where also there is an identical provision for return of Gold, if notice is not given within six months from the date of seizure, and there is a specific provision for the manner of service of notice. In that case, the High Court have also approvingly adopted the ratio of the judgment in a Customs case on the very same issue. In this context, the relevant extracts from the above judgment of Kerala High Court are reproduced below for proper appreciation :-
"The purpose behind Section 79 is two-fold. The first is that confiscation shall be ordered without the concerned party being given a reasonable opportunity of having his say in the matter. The second is that the appropriate authority should make up his mind within six months whether to proceed with confiscation or not. He should make up his mind within six months whether such proceedings should be initiated, and if he fails to do so, the party concerned is entitled to have the gold seized, returned to him. In the present case, the seizure was on 9-7-1974. The appropriate authority had definitely made up his mind by 27-12-1974. The notice had actually been sent on that day. It was presented by the postman for delivery at the petitioner's business premises before the end of Dec. 1974. If the petitioner managed to evade notice, that could not be a circumstance to hold that the concerned authority had failed to make up his mind and take action, within the period prescribed by law.
In Karthikeyan v. Collector of Customs 1971 KLT 537 the question arose whether the words "give notice" used in Section 110(2) of the Customs Act should be construed as meaning actual delivery. Issac J. took the view that what was relevant was the issuing of notice in any one of the manners prescribed by Section 153 of the Customs Act, and that the date of actual receipt by the party was not relevant."
7. In view of this clear legal proposition by the Kerala High Court, even taking into account the Supreme Court judgment cited by the Ld. Counsel, the notice can be said to have been given on the day, the notice was sent by Registered post, which is the statutorily required manner of service, standing on par with personal service. Hence we reject the contention of the appellant that notice was not given within six months in this case. In view of this it is needless for us to go into the citations, for and against the proposition on the question of liability to return of the goods and try for a reconciliatory and acceptable view, as has been pleaded by the Ld. Counsel, citing the recent decision of East Regional Bench reported in 1992 (57) E.L.T. 415.
8. Next, we proceed to go into the other ground based on the claim of ownership of the diamonds by the partnership firm, to which no notice has been given and hence a plea is made that diamonds are to be returned. Without going into the merits of this claim, we first looked at the argument from purely legal provisions contained in Section 110 of the Customs Act. Section 110(2) of the Customs Act envisages return of the goods seized to the person, from whose possession the goods were seized. If no notice is given within a period of six months of the date of seizure. There is no question of return of goods to the firm, which has claimed ownership subsequently on the ground of failure to serve notice within six months. In this case, we have held that such a notice has been duly served on the person, from whose possession, the diamonds were seized, within the stipulated period. Hence, ordering return of the diamonds either to the appellant or to the firm (who are not even the appellants before us) does not arise.
9. For the sake of record, we are to deal with this claim of ownership by the firm. The documents produced indicate that there is some litigation between the firm and the foreign buyer and some diamonds were given to the appellant, by the foreign buyer (as is stated in the defence statement of the foreign supplier on 8-2-1990 long after even adjudication). The appellant urges us to accept this as evidence of rejected diamonds being re-imported for purposes of Section 20 of the Customs Act and for purposes of Clause 11(j) of I.T.C. Order 1955. However, benevolent, we could try to be, we cannot swallow this line of argument for the following reasons. Section 20 of the Customs Act prima facie treats Indian goods imported from abroad on par with foreign goods imported [vide Section 20(1)] and hence they are subject to all prohibitions and restrictions including the requirement of payment of duty, as applicable to foreign goods. If, however, the importer establishes to the satisfaction of the proper authority that the goods imported are of Indian origin and these are identified to be the same, as having been exported earlier and such re-import has taken place within a period of 3 years, after the date of exportation, then certain relaxations in payment of duty and licensing requirement, are to be given. Apart from a belated defence statement of foreign buyer purported to have been signed on 8-2-1990 and filed in the court at Hongkong, the firm's letter claiming ownership after a week of seizure (while the other partner, in his statement, was blissfully unaware of such a transaction) and the Income Tax order in appeal, no tangible evidences are produced, even at this stage that they are the same diamonds exported against particular lots and covered by particular S/Bs and invoices and they are re-imported and their identity is established at least on the basis of such documents. Moreover it is to be established that reimport is within the stipulated period of three years of export. No evidences are forthcoming on this as well. Moreover neither the appellant nor the firm have sought for the waiver from the Reserve Bank regarding non-remittance for the rejected lot and the Reserve Bank's acceptance of their claim of having received the rejected diamonds in lieu thereof. This would be necessary, since export is on confirmed sale basis. Hence, their claim, for allowing the benefit under Section 20 or Clause 11 (j) of the I.T.C. Order, is only to be recorded for rejection. We also do riot get convinced that the diamonds are of Indian origin, even for the purpose of allowing redemption, because of the covert manner, in which they were brought into the country, without any supporting documents and without declaration before the Customs. Hence we uphold the order of absolute confiscation.
10. Now on the question of penalty, we find the appellant to be a man of status engaged in the diamonds export business. He is a frequent traveller to foreign countries and is well aware of all the Customs, RBI and I.T.C. regulations regarding import, export of diamonds. He is also aware (as per his initial statement) that diamonds cannot be brought legally and the diamonds which were exported, were on confirmed sale basis. Hence even if his story of reimport is to be believed, it ought to have done with the specific permission of Reserve Bank. Hence, he has consciously and deliberately chosen to resort to this covert act of concealing and smuggling the diamonds. Presence of diamonds, by the very nature, cannot be easily detected even by modern gadgets. Hence great reliance is placed on declarations from passengers of status, since they cannot be subject to indiscriminate personal search. In such a situation, the appellant's deliberate act, cannot, by any standards, be viewed with leniency. The penalty imposed is not excessive, judged in the context of the value of diamonds and the covert manner of smuggling, resorted to be the appellant. Hence we dismiss the appeal, being devoid of any merit.
P.K. Desai, Member (J)
11. I have the privilege of going through the order proposed by Brother R. Jayaraman, Member (Technical). Though I concur with the conclusion drawn, as some issues of law have been raised, I deem it desirable to record my separate order.
12. On the factual aspect, there does not appear much scope for discussion. Bringing of diamonds by the Applicant, duly kept in his pant pocket at the time of returning to India, otherwise than under the due procedure provided for, is not under dispute. The plea raised as to the voluntary declaration at the time of arrival, is not convincing, as, if that was really true, there was no ostensible reason for the seizing officer to make out a false case, implicating the appellant. The appellant has in his initial statement clearly admitted to have attempted to bring the diamonds without due declaration and without undergoing set procedure for the import. Even assuming that the diamonds were the same, which were earlier exported, the procedure for re-entry was required to be complied with. Even a plea of last minute return by M/s. Gijon Ltd. and ongoing dispute and litigation, could also provide no assistance in meeting with the allegation of contravention of statutory requirements for import. The findings of the Income Tax Authorities, being the one based on entirely different aspect, also can have no bearing on the issue for determination here. The appellant is duly proved to have brought diamonds in contravention of the Statutory provisions, rendering the diamonds as liable to confiscation vide Section 111(d) of the Act and himself liable to penalty vide Section 112(a) thereof.
12.1 What has engaged our attention, are the contentions raised in relation to the show cause notice. The notice contemplated to be the one under Section 124 of the Customs Act is issued and despatched by Registered post on 17-7-1986. Though validity thereof is not challenged on any other count, a plea is raised that the seizure being on 19-1-1986, the show cause notice ought to have been served within six months, as required vide Section 110(2) of the Act, whereas the same has been served on the appellant only on 23-7-1986. A plea is raised that therefore, the order of confiscation of seized diamonds is not legal and has to be set aside and release thereof be ordered.
12.2 In computing the period of limitation, vide Section 9 of the General Clause Act, the first day in the series of days has to be excluded and as such the period, in the instance case, would expire on 20-7-1986.
12.3 With the despatch of the notice by Registered post on 17-7-1986, being not disputed and even otherwise duly proved, the plea is that the service thereof is expected only on 23-7-1986. Except the bare words, however, there is nothing brought on record to substantiate the said plea. Though specific mention is found in the order-in-original about non-production of any evidence, no effort is made even at this stage, to produce the same by way of additional evidence.
12.4 Both the sender and the addressee are from Bombay and the envelope containing the notice, is also admittedly served on the appellant at Bombay. At least, no plea is raised to the effect that the appellant was not in Bombay during the relevant period and the Registered letter was re-directed. From the record it also appears that notice was sent both at residential and business address.
12.5 Under the law, tender is deemed to be a legal service, and postponement of actual receipt, till on a specified date, would not be taken as having any bearing, if due tender on any earlier date is established.
12.6 There is a presumption in law that when correct address and posting is proved, the letter must have been delivered in due course. The presumption so raised is of course, a rebuttable one and further, evidence to be adduced for such a rebuttal need not be strong enough to conclusively establish the said plea, and on adducing such evidence, the burden shifts on the other side to prove due receipt of the letter by the addressee. All the same, it remains for the addressee to bring some evidence in that regard before presumption raised gets rebutted.
12.7 In the instant case, the seizure being of 19-1-1986, the period of six months would stand expired on 20-7-1986, as first day in the series has to be excluded, the notice to show cause, is duly proved to have been despatched on 17-7-1986, by Registered post, and was despatched from Bombay to be delivered to the addressee also at Bombay, the presumption that could be raised is that it must have been tendered for delivery at least on or before 20-7-1986. To reiterate, tender is deemed to be due service. With this presumption available, it is for the Appellant to adduce some cogent evidence and show, for the purpose of rebuttal, that the notice was never tendered to him on any day prior to 23-7-1986, and for this, postal envelope would have been the best available evidence, where endorsement could prove or falsify his claim. The authority below also appears to have this aspect in his mind as is reflected from his order and as such, this is not the new angle that is being given to the factual position. Though one cannot shut one's eyes to the postal delays, one can also not overlook the fact that, the delayed acceptance could also be arranged to get some technical advantage.
12.8 From the circumstances, as discussed above, the plea raised, of the service of notice after expiry of a period of six months, and consequent prayer for release of seized diamonds, cannot be accepted and have been rightly rejected by the authority below.
13. My learned Brother has, referring to the judgment of Kerala High Court in CD. Govind Rao v. The Additional Secretary 1982 ECR 484 J , discussed the statutory provisions and has held that what is contemplated under the law is "giving" of the notice, and with one of the specified modes for giving notice being despatch by a Registered post, which, in the instant case, is complied with within the period of six months, the legal consequences specified in Section 110(2) of the Act could not come into play.
13.1 However, in view of what has been discussed above, it may not be even necessary to go into that aspect, and even otherwise, notwithstanding the controversy as to whether "giving" of a notice is enough or whether "due service" has to be effected within the time specified, as contemplated under Section 110(2) of the Act, there is also another angle of vision, where this aspect would not assume any importance in relation to the scrutiny of the order of confiscation vide Section 111(d) and of the personal penalty vide Section 112(a) of the Customs Act.
14. CEGAT South Regional Bench, has in Manjit Singh v. Collector of Customs, Bombay, 1986 (26) E.L.T. 649 held that once the party participates in the adjudication proceedings pursuant to the show cause notice, vide Section 124, and order in relation to said adjudication is passed ordering confiscation, the issue of the non-service of notice within a period of six months, becomes one of an academic interest.
15.1 Even that apart, going by the decision of the Supreme Court in the Asstt. Collector, Customs, v. Charandas Malhotra AIR 1972 SC 689 , the said Court has held that Section 124 does not lay down any period within which the notice has to be given and Section 110(2) affects only the seizure. In Mohanlal Devdanbhai Choksey v. M.P. Mondkar, 1988 (37) E.L.T. 528 (Bom.) the Bombay High Court has also considered the said decision of the Supreme Court, and has concluded that the Supreme Court has only re-affirmed the view that Section 124 does not lay down any period of limitation, and has thereafter, gone on discussing as to whether, in the case, where six months' period, as contemplated under Section 110(2) has not been complied with, order of confiscation could be passed or not and has taken into account the views of (i) The Madras High Court in Collector of Customs v. Amruthalakshmi (1974) 2 Madras Law Journal, 88 , (ii) the Gujarat High Court in J.K. Bardolia Mills v. M.L. Khunoer, 1975 (16) Gujarat Law Reporter 119
(iii) Punjab and Haryana High Court in Muni Lai v. Collector, Central Excise, AIR 1975 Punjab and Haryana 130 and (iv) Calcutta High Court in All India General Transport Corporation v. Collector of Customs, 79, Calcutta Weekly Notes, 663 , and has come to the conclusion that the object of Section 110 is not for initiation of proceedings for confiscation or for imposition of penalty, but to indicate the effect on the seizure of the goods, and non-compliance of six months' period would result in an obligation on the Customs Authorities to return the seized goods, but there is nothing in that Section to fetter or limit the power of the competent Authority to initiate the proceedings vide Section 124. Giving their-verdict on the interpretation of the provisions of the said Section, the High Court has held that under Section 124, it will be open even to the competent Officer to pass an order of confiscation of goods or imposition of penalty, without seizing of the goods or even after returning the same under Section 110(2).
15.2 I am conscious of the contrary view in this regards, and also of the decision of CEGAT East Regional Bench in Shyamlata Sharma v. Collector of Customs, 1992 (57) E.L.T. 415 (Tri.) . In the said decisions, the Honourable Members themselves have accepted that there are two different schools of thought. They have been guided initially by the decision of the Supreme Court in Re : Charandas Malhotra (Supra) which is also considered and partly relied upon by the Bombay High Court in Re : Mohanlal Devdanbhai Choksey (also Supra) to conclude that provisions of Section 110 do not control provision of Section 124. They have then referred to the decision of Delhi High Court in Shantilal Mehta v. Union of India 1983 (14) E.L.T. 1715 . There the High Court appears to have been guided more by the equitable principle as is reflected from the observation, "This case vividly illustrates how the owner can be deprived of the protection of the law and how the due and orderly administration of law can be diverted into a new course, which may serve as an evil procedure in future." Further the same High Court has, in Shah Chaganlal Gaimalji v. Union of India 1988 (34) E.L.T. 428 (Delhi) held that Section 110 has nothing to do with ultimate confiscation of goods and that Section 124 is not dependent upon actions under Section 110. The Bench has then relied upon the decision of Calcutta High Court in Kantilal Somchand v. Collector of Customs 1982 (10) E.L.T. 902 . There the High Court has only considered the provisions of Section 124 vis-a-vis seized property but has not looked into the issue from the angle that confiscation under Section 124 can be ordered even without the seizure. The Bench has also relied upon the decision of Punjab and Haryana High Court in Tersem Kumar v. Collector of Central Excise, AIR 1972 P & H 444 , but the same High Court has in Munilal v. Collector of Customs AIR 1975 P & H. 130 , taken the other view. CEGAT-North Regional Bench has also, in Sat Pal v. Collector of Customs 1987 (27) E.L.T. 107 (Tri.) considered the provision as independent. The Honourable Members appear to have been impressed with the view that Sections 124 and 110 cannot be read in isolation. With due respect, however, as indicated above, many of the High Courts and as indicated in the Bombay High Court judgment referred to above, even the Supreme Court, has considered both the provisions, as distinct and self-contained, and the said position is clearly brought out by the Bombay High Court in Re : Mohanlal Devdanbhai Choksey (Supra).
15.3 Under the circumstances, despite the view taken by the East Regional Bench, when the said Bench itself admits of two schools of thought, and when the Bombay High Court has elaborately explained and analysed the statutory provisions and when the views of other High Courts, as discussed above, more or less indicate the same, a conclusion has to be drawn that, notwithstanding the non-compliance with the requirements of Section 110(2), adjudication proceedings initiated and confiscation ordered are permissible, and as indicated earlier, the same on factual aspect also, is justified.
15.4 I am conscious of the fact that, if a view contrary to the one held by another Bench, is to be taken, the matter has to be referred to the larger Bench. Here, however, that is not felt necessary, as the decision of the Bombay High Court is exactly contrary to the view held by the East Regional Bench, and even the North Regional Bench in Re : Sat Pal (Supra) has taken a contrary view. In any case, we are bound to follow the decision of the Bombay Court, in preference to the one of the Tribunal.
16. Yet another technical objection is also raised, namely non-service of Show Cause Notice to the firm which has claimed the diamonds. Notice to both the partners was duly served and as such, there was a substantial compliance for issue of notice, and when both the partners have received the notice non-serving the same separately in the name of the firm, would be only a technical lapse.
17. Thus the objections raised cannot be made available for any benefit to the appellant, who otherwise is duly proved to have contravened the provisions and hence I hold that there is no merits in the appeal. There is also no ground to extend any leniency in the order of the Authority below.
18. I therefore concur with the final order as proposed by Brother R. Jayaraman.