BEFORE THE HONOURABLE HIGH COURT OF KERALA,

ERNAKULAM

W.P. (C). No Of 2022

Petitioner

Rashida Vattiparambath, aged 32 years,

W/o Jabir Thadathil, Kalathingal House,
Makkaraparamba, Perinthattiri P.O,
Malappuram, Pin-676507.
Respondents
1. Central Board of Indirect Tax and Customs
Through Chairman, North Block, New Delhi-110001.

2. Additional Commissioner of Customs,

Air Customs, Cochin International Airport,
Nedumbassery, Pin-683111.

3. Superintendent of Customs.
Air Intelligence Unit, Cochin International Airport,
Nedumbassery, Pin-683111.

4. Superintendent of Customs(ADMN)
Cochin International Airport,
Nedumbassery, Pin-683111.

WRIT PETITION(C) FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA

Address for service of notice and processes upon the petitioner is that of their
counsel U.JAYAKRISHNAN, JUDY JAMES, SARUN RAJAN AND
SOORAJ .D, JADE ASSOCIATES, 1ST FLOOR, VALLAMATTOM
ESTATE, T.D ROAD NORTH END, ERNAKULAM-682035 and all notices
and processes to the respondents may be served on their addresses as shown
above.
 STATEMENT OF FACTS

The petitioner most respectfully submits as follows:-

1. The petitioner is the holder of passport bearing No. V3821828. On

21.02.2022 when the petitioner along with her daughters and mother-in-law
arrived at the International Terminal of the Cochin International Airport
Limited, Nedumbassery in Saudia Airlines Flight from Jeddah, the 3 rd
respondent intercepted and seized gold chains and bangle weighting 932.800
gms from her possession on an allegation that she had tried to smuggled the
said gold ornaments in her baggage without making declaration before the
proper officer of the Customs. Thereafter, the 3 rd respondent recorded the
statement and has arrested the petitioner and released on bail. The true copy
of the arrest memo dated 21.02.2020 is produced herewith and marked as
Exhibit-P1. The true copy of the seizure mahazar is produced herewith and
marked as Exhibit-P2. The true copy of the detention receipt dated
21.02.2022 is produced herewith and marked as Exhibit-P3.
2. The husband of the petitioner has been doing business in Jeddah, Saudi
Arabia since 2008. The petitioner along with her daughter and mother-in-law
were went to meet her husband 3 months before the date of the aforesaid
incident on a visiting visa. The petitioner’s husband has saved all his income
from 2008 to buy gold ornaments for the purpose of their daughters' and his
sister's daughters' marriages and he had purchased the said gold Circular
No.37/2019 dated 05.11.2022 issued by the Central Board of Indirect Tax
and Customs from Al-Malakiya Jewellery in Jeddah. The petitioner and her
daughters were wearing all the gold ornaments before boarding the flight
from Jeddah. But the customs officials came to petitioner and asked to
remove all the gold ornaments and to put them inside the bag that was
 carried by them. The ornaments were not in any concealed manner. The 3rd
respondent seized the gold ornaments stating the reasons that the petitioner
had tried to smuggle the same by concealing it in her baggage and without
declaring the same before the proper officer of customs.
3. Thereafter, the 2nd respondent has issued show cause notice to the petitioner
under Section 124 of the Customs Act requiring the petition to explain the
reason for which the confiscation should not be taken under sections 111(d),
(i),(j), (l) and (m) of the Customs Act, 1962 R/W Section 3(3) of the Foreign
Trade (Development and Regulation) Act R/W Section 11 of the Act and
imposing penalty under Sections 112(a) and (b) of the Act. The true copy of
the show cause notice dated 08.06.2022 issued by the 2 nd respondent is
produced herewith and marked as Exhibit-P4. The show cause notice was
duly complied by the petitioner vide reply dated 07.07.2022. The true copy
of the reply dated 07.07.2022 given by the petitioner is produced herewith
and marked as Exhibit-P5.
4. That to the surprise of the Petitioner, the 4 th respondent without giving any
opportunity for personal hearing to the petitioner, arbitrarily issued with the
notice dated 26.10.2022 under Section 150 of the Customs Act intimating
that the action has been initiated for the disposal of the seized gold under
Section 110(1A) of the Customs Act. The true copy of the notice dated
26.10.2022 issued Section 150 of the Customs Act by the 4 th respondent is
produced herewith and marked as Exhibit-P6. Then the petitioner had sent
an application through email seeking to stop all further proceedings in
pursuance to the Ext.P6 notice without giving any opportunity for personal
hearing. The application of the Petitioner has been not even decided yet.
Without granting or refusing the application as prayed for the petitioner, the
 respondents has been proceeding with the Ext.P5 notice in an arbitrary and
irrational manner, which is devoid of law.
In the above-mentioned circumstances the petitioner has no other efficacious
alternative remedy except to approach this Honorable Court for the redressal
of his grievances on the following among other
GROUNDS
A. That it is submitted that Ext.P-6 notice issued by the 4 th respondent is illegal,
erroneous, arbitrary, unreasonable, violates Articles 14 and 21 of the
Constitution of India and hence unsustainable in law. Hence the interference
of this Hon’ble Court is highly necessary as the seizure and action initiating
confiscation are void ab-initio and deserves to be set aside.

B. That Ext.P-1 and P-2 arrest memo and seizure memo are bad in law, illegal
and the same is violation of the guideline prescribed in the Circular
No.37/2019 dated 05.11.2019 issued by the Central Board of Indirect Tax
and Customs. The true copy of the Circular No.37/2019 dated 05.11.2019
issued by the Central Board of Indirect Tax and Customs is produced
herewith and marked as Exhibi-P7. As per Ext.P-7 Circular the quoting of
DIN is a mandatory requirement for all communications sent by its offices to
taxpayers and other concerned persons.

C. That when the seizure memo is invalid in the eyes of law, then any
consequent notice issued under section 124(a) of the Act issued in pursuance
of Section 110(2) is unsustainable and hence deserves to be set aside as null
and void. When the seizure memo is invalid in the eyes of law, the
consequent show cause notice issued is void ab initio and the authority has
also loses jurisdiction to issue show cause.
D. The invocation of notice under Section 150 is inapplicable in the present fact
as the said Section deals with “goods other than the confiscated goods”,
whereas on the contrary, in the instant case, the department has issued show
cause for confiscation and penalty of gold on one hand and on the other
hand, is showing undue haste by invoking Section 150 is disposing of the
goods without completion of any adjudication and without giving any
opportunity to the Petitioner to be heard in person. Hence the action initiated
against the seized gold of the petitioner by issuing Ext.P6 notice under
Section 150 of the Act is bad in law and deserves to be set aside. The show
cause is perverse in law and prays for this Hon’ble Court’s interference.

E. That Ext.P6 show cause notice has exceeded the scope of Section 124 (a) in
so far as the proposal to confiscate the chains and bangles along with
imposing penalty under Section 112(a) & (b) are fundamentally flawed as
the Show Cause Notice has miserably failed to show intent to smuggle or
conceal as the invalid seizure memo would show that no baggage in which
the alleged chains and bangles were concealed were seized and this is
fortified by the departments admitted recording in the Mahazar that “nothing
else was seized from the passenger as all other contents in her hand baggage
were found well within her free-allowance and the same was returned to the
passenger in our presence”. Secondly, the Show Cause Notice is devoid of
the quantum or determination on the penalty to be imposed either under
Section 112(a) or 112(b) but in the instant case, the penalty is sought to be
imposed under both provisions, i.e. 112(a) & 112(b) which is unsustainable
and deserves to be set aside. That the SCN follows the seizure memo issued
seizing “chains and bangles” whereas SCN proposes to confiscate “gold” . it
 is pertinent to mention that the procedure to dispose “chains and bangles”
are entirely divergent. That if “gold” is to be disposed, then the disposal
manual prescribing disposal ought to be followed where only authorized
agencies are authorized to take in confiscated gold. Hence in the instant
case, SCN which proposes to confiscate “gold” is bad in law as the seized
goods are not correctly described.

F. That the Show Cause Notice is unsustainable also on the ground, that
provisions of Section 111(d), (i), (j), (l) and (m) are not applicable in the
present facts and circumstances of the case as the ingredients of the sub
sections charged under Section 111 of the Customs Act, 1962 do not apply
as framed in the SCN because the said goods, i.e seized chains and bangles
are restricted goods and hence do not fall within the meaning of dutiable or
prohibited goods. That dutiable goods are define in Section 2(14) in
restrictive and narrow sense hence it does not include restrictive goods and
prohibited goods are define in Section 2(33) also in restrictive and narrow
sense specifically excluding those goods which are subject to some
permissions which are to be complied with. The offence under Section 111
cannot be made out in the case of restricted goods. That non-seizure of the
baggage/package alleged to have concealed the chains and bangles prima
facie shows that the story/narrative of the Respondents that the seized chains
and bangles were found concealed in the baggage is on the face of it is
untrue and wholly false. That on this ground alone and with the reading of
all other grounds urged upon as above, the entire proceedings should fail and
deserves to be set aside.
G. That without prejudice to any contentions raised or any grounds urged herein
and keeping in mind the interest of revenue and in all fairness, the Petitioner
would like to avail the discounted rate of duty(13.75%) [as opposed to
(38.5%)], applicable to any “eligible passenger” in accordance with the
Baggage Rules, 2016 and in-order to do so, would request this Hon’ble
Court’s interference in permitting the re-export of the seized chains and
bangles so that the Petitioner’s husband who is working in Jeddah can bring
the same along with him after duly declaring the same and paying
discounted rate of duty in accordance with the baggage rules.

For these and other grounds to be urged at the time of hearing it is most
humbly prayed that this Honorable Court may be pleased to: -

i. Issue a writ of mandamus calling for records relating to Ext. P1 arrest

memo, Ext.P2 seizure mazahar and further issue a writ of certiorari
certifying that Ext. P1 arrest memo, Ext.P2 seizure mazahar and Ext.P6
notice issued by the respondent as void ab-initio and deserves to be set
aside as the same does not comply with the directions in Circular
No.37/2019 dated 05.11.2019 issued by the Central Board of Indirect
Tax and Customs;

ii. Issue an appropriate writ of certiorari/order/direction declaring that

Ext.P-5 Show Cause Notice as bad in law and set aside Ext.P-5 as void
ab initio;

iii. Issue an appropriate writ/order/direction directing the Respondent to

allow the Petitioner to re-export the seized goods subject to any terms
by this Hon’ble Court;
iv. Issue such other writ, orders or directions, which this Honorable court
may deem fit and proper in the interest of justice and circumstances of
the case.

INTERIM RELIEF

For the reasons stated in the above writ petition and affidavit it is most
humbly prayed that this Honorable court may be pleased to direct the
respondents to provisionally release the goods which were seized from the
petitioner, after providing any security as this Hon’ble Court in the interest
of justice may deem fit.

Dated this the 27th day of November, 2022

Petitioner

Counsel for the petitioner