Legal Process for Recovering Seized Gold at Delhi Airport: Legal Advice for Gold Confiscation at Delhi by Customs Lawyer
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Seizure of gold at Delhi Airport often lands the person having possession of such gold or the one claiming to be owner of that gold under the charges of gold smuggling, which in itself is a troublesome task. Thus, as far as possible, such activities shall be avoided, which can land the person under these smuggling charges, but if the gold is anyhow seized by the customs authorities at the Delhi Airport, efforts shall be made to recover it as soon as possible before it gets too late. Recovering the seized gold is in itself an intricate process, as it is done under the Customs Act of 1962. But the same Act also provides certain provisions, whose proper implementation can lead to the successful recovery of the seized gold from the authorities.
Seizure of gold is commonly dealt with under the following provisions of the said Act:
• Section 110 provides the authority to the proper officers to seize gold if they have reason to believe that such gold shall be confiscated under the relevant provisions of this Act.
• Section 124 provides that before confiscating any seized gold, the person whose gold is to be seized shall be provided with a notice informing him of the grounds on which the gold is proposed to be confiscated. The person to whom notice is served shall be given reasonable time to make representation in writing against those grounds mentioned in the notice, and an opportunity of hearing shall also be provided in the said matter.
• Section 125 provides an option to the owner of the confiscated gold or the person from whom the gold is confiscated that he can, in lieu of the confiscation, pay such amount of fine as the officer adjudging the confiscation thinks fit.
Now, after understanding the legal framework involved in this process of seizure, the following is presented as a step-by-step approach to navigate with the legal challenges associated with such recovery for the person whose gold is seized:
• Firstly, before the gold is seized as per Section 110 of the Act, the person from whom it is being seized or the owner of that gold shall be served with a show cause notice as per Section 124 in writing or oral containing the grounds on the basis of which the gold is to be seized and confiscated. The person receiving that notice shall carefully read all the grounds mentioned in the notice and check whether the grounds are actually valid in any manner or there’s some misunderstanding by the authorities which led to this seizure.
• After receiving and reading the show cause notice, the person shall without any delay file a reply to that notice defending himself and mentioning the grounds or explaining the reasons why his gold shall not be seized or confiscated. In this, the person can mention the irregularities committed by the customs officers during the seizure of gold, non-compliance of the relevant provision, or seizure of gold by unauthorized officers, which led to the return of the seized gold by such authorities to the person.
• From the initial stages only, the person shall hire a legal consultant, practitioner, or representative who has thorough knowledge regarding the customs matter. Such a legal expert would be very beneficial throughout this process of recovering the seized gold. As per Section 146-A of this Act, the legal expert could appear on his behalf and deal with the customs officers or the Appellate Tribunal, as the case may be. This legal expert could also help in understanding the show cause notice sent to him and aid in filing a proper, strong reply to it for the authorities, addressing both factual and legal issues.
• Evidence shall be collected for the same purpose to present a strong case during the adjudicating process. Evidence can include receipts of gold purchase, bills of importation, witnesses favouring your side, and preparing legal arguments to counter the prosecution allegations. The customs authority, to provide an equal opportunity of hearing to the person from whom the gold is seized, will hold an adjudication hearing. In that hearing itself, all the evidence shall be presented because if there are charges that the gold could be a smuggled good, then according to Section 123 of the said Act, the burden of proof will lie on the person from whom the gold is seized or the person claiming to be the owner of such gold. After analyzing all the evidence, the concerned authority will decide whether the gold shall be released or seized.
• If the gold is confiscated by the customs authority, the officer adjudging the confiscation can provide to the owner of the gold or the person from whose possession the gold was an option to pay a certain amount of fine as per Section 125 of the said Act in lieu of the confiscation of the gold. By paying the amount decided by the concerned officer, as per this provision, the person can reclaim his gold without further involvement in legal battles.
• But if the option of pay fine is not provided and the authorities give an unfavourable adjudicating order to the accused, he can make an appeal of that order or decision under Section 128 of the said Act to the Commissioner (Appeals). Aggrieved from this order also, the person can make an appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in Section 129-A constituted under Section 129 of the said Act.
• A revision application can also be filed by the aggrieved person with the Central Government against the orders of the above authorities under Section 129-DD of the said Act.
• Then, under Section 130 of the said Act, the aggrieved can make an appeal from the orders passed by the Appellate Tribunal to the High Court.
• And if nothing comes in favour, the last resort available to the aggrieved person is to approach the Supreme Court under Section 130-E of the said Act. While making an appeal to the High Court or the Supreme Court, the person shall ensure that the ground for appeal must be one involving a substantial question of law. Such an appeal can be either taken up by the Court itself on its own motion or on an oral application made by the aggrieved person.
In the case of J.K. Bardolia Mills v. M.L. Khunger, Dy. Collector 1994 SCC (5) 332, the Supreme Court of India held that if the provisions of Section 110(2) of the Customs Act, 1962 are not complied with, the result of it would be that the goods which are seized have to be returned to the person from whose possession they were seized.
In conclusion, it is imperative to mention that whatever legal support is required for challenging the seizure of gold from the customs authorities shall be utilized. Comprehending these sections and their implication can greatly impact the success of any legal challenge regarding the seizure, while also enhancing the strategy for recovering the gold.
The focus should be relied on the importance of due process, burden of proof, timely action, and the requirement for substantive evidence in supporting your defence against the seizure by the Customs authorities under the Customs Act, 1962.
Authored By: Adv. Anant Sharma & Sahil Arora
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