How to Challenge a Gold Seizure under the Customs Act at Delhi Airport: Legal Strategies by Customs Lawyer for Gold Confiscation at Delhi Airport

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Seizure of gold by the Customs authorities is a common activity at the Delhi Airport or Terminal because of the stringent regulations under the Customs Act, 1962. The people try to smuggle gold either because of greed, or to evade customs duty, or due to some threat. No matter what the reason, once the gold is seized, it becomes a complicated task to challenge that seizure and recover it back from the authorities. The situation is to be analyzed, the legal framework is to be understood, and effects steps have to be taken to challenge such a seizure.

Following is discussed a brief set of guidelines to challenge a gold seizure under the Customs Act:
• The first and foremost step in such a situation where some higher authorities are involved and the person whose gold is seized has little or no experience regarding the manner to deal with them is to engage a legal practitioner having expertise in the field of customs. Such a legal practitioner will guide the person in a better manner and aid him in challenging the gold seized by the customs authorities by finding the lapses in the seizure procedure; some of the lapses will be discussed below. Section 146-A of the Customs Act, 1962 also allows such a person whose gold is seized to appear in certain situations through his authorised representative, which could be his legal practitioner as well.
• There could always be a possibility that the customs authorities overvalue the value of the gold to justify its seizure or question the lawful ownership of the gold being imported or exported. In such situations, if the authorities try to seize the gold, the person present there can challenge it by asking for a re-calculation of the gold and duty imposed on it in front of him and present the necessary documents which describe the weight, quality, ownership status, permission, and other requisite bills, including purchase or sale receipts or invoices for the said purposes.
• Section 110(2) of the said Act clearly states that whenever any goods are to be seized, including gold, once they are seized, within six months of such seizure, a notice as under Section 124 shall be given to the person from whom they are seized. This is a very crucial process, as it protects the person and his property and makes him aware regarding the seizure. In the same legal provision, it says that in the absence of providing such notice, the goods, including gold, shall be returned to the person from whose possession the gold was seized.
• Section 124 of the said Act, as discussed above, provides a protection to the owner or possessor of the gold that no gold shall be confiscated unless a notice in writing is given to the owner or possessor mentioning the grounds on which the authorities proposed to confiscate the gold. Also, such person has to be given the opportunity to make a representation against the grounds mentioned in the notice, and such person has to be given the opportunity to be heard so that such person can give an explanation why his gold shall not be confiscated and challenge the seizure. In the absence of a notice before seizure, an opportunity to present one’s version and be heard, such a person can challenge the validity of the seizure of the gold made.
• Section 125 of the said Act provides an alternative route instead of seizure of the goods. In this, under certain situations where the gold is authorised to be confiscated as per the Act, the officer adjudging it can provide an option to the owner or the possessor of the gold to pay an amount of fine in lieu of the confiscation of the gold. The amount of the fine is dependent upon the discretion of such officer, but it shall not exceed the limits prescribed by this Section itself. This provision is crucial, as it could be used while considering the settlement options and challenging the scenario that seizure of gold is not always the only way to deal with the case.
• If at the stage of the seizure of the gold, or any later stages, such person feels that there’s any procedural lapse or constitutional violation or the authorities violated the principles of natural justice, then such person can contest the same in the concerned court or can also file a writ petition under Article 226 or Article 32 of the Indian Constitution, challenging the seizure.
• In case, after the seizure, the adjudicating authority or officer of customs passes an order not in the favour of the concerned person, he can challenge the same under the relevant provisions of this Act itself. Firstly, the aggrieved person can appeal to the Commissioner (Appeals) under Section 128 of the Act. Then, aggrieved from the order, an appeal can be made to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in Section 129-A constituted under Section 129 of the said Act. Later on, the Central Government is provided with the power of revision under Section 129-DD, through which they can annul or modify any order passed by the above authorities. Aggrieved from the above order, an appeal can be made to the concerned High Court under Section 130 and to the Supreme Court of India under Section 130-E of the said Act.

In the case of Kevin Intotech Pvt. Ltd. v. Commissioner of Customs (Port) 2006 (194) ELT 424 (TRI-KOLKATA), the Customs, Excise and Gold Tribunal of Calcutta explained the importance of filing a Vakalatnama to appeal and argue a matter. Rule 13 of the CESTAT Procedure Rules, 1982, mandates that a document authorizing a legal practitioner to appear must be appended to the Memorandum of Appeal. Apart from this, it is also mandatory for an advocate to file a Vakalatnama before appearing and arguing on behalf of a party before the Tribunal, unless such advocate is designated as a Senior Advocate under the Advocates Act, 1961. Shri R.K. Chowdhury, an advocate representing the appellant, claimed the right to appear before the Tribunal under Section 146-A of the Customs Act, 1962, as their legal practitioner. But he did not file a Vakalatnama as required by Rule 13. The Tribunal, after referring to the relevant legal provisions and judgements provided by the parties, held that it is necessary to append the document authorizing him to the Memorandum of Appeal. Thus, Shri R.K. Chowdhury, advocate, not designated as a Senior Advocate, did not comply with the requirements, so consequently, he could not be authorised to appeal on behalf of the appellant company, Kevin Intotech Pvt. Ltd.
This case is essential to understand, as while challenging the gold seizure by a legal practitioner, it shall be kept ensured that a Vakalatnama be filed before appearing and arguing the matter. Without this document, the court can dismiss the case, and the chance to challenge the gold seizure might be lost.

In conclusion, the main point which is to be kept in mind in these situations is that to effectively challenge a gold seizure under the Customs Act, 1962, it is essential to have extensive familiarity with the laws, careful consideration of procedural requirements, and a strategically crafted legal framework. It is feasible to dispute and reclaim the seized gold by establishing lawful ownership, identifying procedural errors, and initiating an appeal process.
Authored By: Adv. Anant Sharma & Sahil Arora

 

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