D.P Kundu, J.:— This appeal is arising out of judgment and order dated 23rd November, 1995 passed by S.B Sinhai, J. in Civil Order No. 8581 (W) of 1994.

2. M/s. Tirupati Trading Corporation who instituted the writ proceeding being Civil Order No. 8581 (W) of 1994 claims to be a partnership firm registered with the registrar of firms. The petitioner claims that the partners of the petitioner are citizens of India and the petitioner is dealing in and carrying on business of Refuse for Joss Sticks. It is stated that the petitioner started business of export in February, 1994 and on account of liberalised policy, the petitioner started export of Refuse for Joss Sticks. It is claimed that one of the partners of the petitioner in his individual capacity, at the material time, was working as a local handling agent and signatory of M/s. India Sales International, Rajbi Road, Kanpur, Uttar Pradesh (hereinafter referred to as India Sales) for export of their goods from Calcutta Port and India Sales, at the material time, had been exporting machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hongkong, Jeddah and Dubai. It is claimed that job of the said partner of the petitioner, while working as handling agent and signatory of India Sales, was for handling the export of goods and he was paid lump sum charges per shipment which included release of their cargo from Railway/Transport and handing it over to the clearing agent, preparation of export documents relating to Customs etc. and after shipment is effected sending all the documents to the principal i.e India Sales. It is noted here that names or any other particular of the partners of the petitioner have not been disclosed either in the writ petition or in the supplementary affidavit filed on behalf of the petitioner. It is also noted that the main writ petition was supported by an affidavit affirmed by one Binod Agarwal who was the Tadbirkar of the petitioner and the supplementary affidavit filed on behalf of the petitioner was affirmed by one Tarapada Das who was the agent and employee of the petitioner. Therefore, none of the partners had filed any affidavit before this Court in connection with the present writ proceeding. Total number of partners has also not been enclosed. No document has been produced before the Court to substantiate that one of the parties of the petitioner in his individual capacity, at the relevant time, was working as a local handling agent and signatory of India Sales. Under these circumstances this Court, in the present writ proceeding, can not, either accept the statement or proceeding on the basis of the statement that one of the partners of the petitioner in his individual capacity, at the relevant time, was working as a local handling agent and signatory of India Sales. This aspect of the matter can be decided only on evidence by the appropriate authority under Customs Act, 1962. It is suffice to say that there is no material before this Court on the basis of which the Court can hold that one of the partners of the petitioner, at the material time, Was working as a local handling agent and signatory of India Sales. It has been stated in the writ petition that a consignment was to be exported by the petitioner to the consignee in Hongkong under Invoice No. TTC/EXP/002.i994, dated 10-2-1994. The said consignment consisted of 200 gunny bags of Refuse for Joss Sticks and declared for Shipping Bill No. EF-787, dated 14-2-1994. The Refuse for Joss Sticks is the raw material for Agarbati preparation in dust form which consist of khas grass, sandalwood waste after extracting and distillation of oil by steam process and Morepanki after extracting oil and distillation of oil and apart of soil. For the purpose of the expbrt of goods, the petitioner purchase the Refuse for Joss Sticks from M/s. Arvind & Brothers, Makarand Nagar, Kannauj, District Farukhabad, Uttar Pradesh. It has been stated in the writ petition that the goods were purchased after one of the partners of the petitioner personally inspected the sample. It is noted that here also no particular of the partner has been disclosed. It has been stated in the writ petition that the contract between the consignee and the petitioner was finalised over phone. The case of the petitioner is that the bags of Refuse for Joss Sticks were received at Kanpur Station as per order term Ex-Kanpur and then those bags were loaded in wagon. According to the petitioner these bags were cleared from Howrah Railway Station by employees of the petitioner after which the goods were kept in Warehouse in the account of clearing agent M/s. Shaikh and Pandit and their responsibility was for arrangement of further transport, loading and unloading, shipment, clearance, etc. The petitioner stated that the contents of the bags were not checked by the petitioner on arrival of the goods at Howrah. It is difficult to believe, that the petitioner did not get the contents of the bags checked on arrival of the goods at Howrah. Ordinarily, the purchaser checks up the contents and conditions of the materials when the materials reach the destination. The case of the petitioner is that one of the partners of the petitioner, whose name has not been disclosed, in his individual capacity was working as a local handling agent and signatory of India Sales for Export of their goods, from Calcutta Port and that India Sales had been exporting Machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hongkong, Jeddah and Dubai. It is stated that the job of the said unnamed and unidentified partner of the peti tioner, as handling agent and signatory of India Sales, was for handling the export of goods and he was paid lump sum charges per shipment which included release of their cargo from Railway/Transport and handing it over to the clearing agent, preparation of export documents relating to Customs etc. and after shipment is effected sending all the documents to the principals. The petitioner further stated that India Sales received foreign buyers' order for export of 340 bags of machine finished knife handles and 200 bags of machine finished paper weight made of sandalwood and the petitioner obtained order for export of 200 bags of Refuse for Joss Sticks. The case of the petitioner is that 540 bags belonging to India Sales and 200 bags belonging to the petitioner in total 740 bags were sent to Calcutta by rail in one wagon from Kanpur. At this stage it is necessary to quote the following few lines from Paragraph 7 of the writ petition:

“The goods (540 bags) of India Sales International and 200 bags of M/s. Tirupati Trading Corporation were mixed up in the wagon and reached to Calcutta.”

3. The petitioner stated that 540 bags of India Sales and 200 bags of the petitioner reached at Howrah Station and after clearing entry tax and sales tax at Howrah the said 740 bags were loaded in five trucks for sending to Warehouse. It has been stated in the writ petition as follows:—

“On the way one truck carrying 150 bags had been seized by the Sales Tax Authorities and it was ascertained from the driver that the said 150 bags belonging to India Sales International.”

[Emphasis added]

4. When it is a positive case of the petitioner that the goods (540 bags) of India Sales and 200 bags of the petitioner were mixed up in the wagon and reached to Calcutta and when it is the definite case of the petitioner, as made out in Paragraph 5 of the writ petition, that the bags were not checked by the petitioner on arrival of the goods at Howrah then it is not understood how from the driver it could be ascertained that the truck carrying 150 bags which have been seized by the Sales Tax Authorities belonged to India Sales. The very statement that it was ascertained from the driver that the said 150 bags belonged to India Sales indicates that the case of the petitioner that 540 bags of India Sales and 200 bags of the petitioner were mixed up in the wagon and that on the arrival of goods at Howrah the bags were not checked by the petitioner is not correct. It is also important to note here that the Paragraphs 5 and 7 of the writ petition have been verified as information derived from the records. No such records has been produced before the Court to substantiate the statements made in Paragraphs 5 and. 7 of the writ petition. Under these circumstances it is difficult to believe the case of the petitioner. Moreover these aspects of the matter can be properly decided on evidence by the competent authority under the Customs Act, 1962. Court while exercising powers of judicial review under Article 226 can not assume or usurp the functions of the competent authorities under the Customs Act, 1962.

5. The petitioner stated that the balance four trucks with 590 bags belonging to India Sales and the petitioner reached to the Warehouse and in view of the seizure of 150 bags of goods of India Sales, the Warehouse ought to have received 200 bags of Refuse for Joss Sticks on account of the petitioner and 390 bags of machine finished sandalwood products on account of India Sales but Warehouse received 150 bags of Refuse for Joss Sticks on account qf the petitioner and 440 bags on account of India Sales without any description of the goods. These statements have been made in Paragraph 10 of the writ petition which was verified as true to the knowledge of Binod Agarwal who affirmed-the supporting affidavit of the writ petition as “tadbirkar”. No documents has been produced before this Court to substantiate those statements. In absence of any documentary evidence it is not possible to accept those statements, and also the case wanted to be developed on the basis of those statements. The petitioner stated that the goods were received in the name of M/s. Shaikh and Pandit clearing agent on account of the petitioner and India Sales.

6. The writ petitioner has challenged the legality of the seizures made on 3-3-1994, 10-3-1994 and 7-4-1994 by the Customs authorities on the ground that there was not material before the proper officer on the basis of which he could have a reason to believe that the goods which have been seized are liable to confiscation under the Customs Act, 1962 therefore, the proper officer had no jurisdiction, authority or power to seize the goods of the petitioner:

7. It appears that on

(a) 3-3-1994, 200 gunny bags containing sandalwood pieces had been seized from inside the container No. NSAU-201290-1(20) at 6, K.P.D

(b) 3-3-1994, 190 bags dust material and 50 bags sandal wood pieces had been seized from inside the container No. MISU-909625-9(20) at 6, K.P.D

(c) 10-3-1994, 100 bags sandalwood pieces and 50 bags dust material had been seized from the office of the Commissioner of Comrner-cial Taxes, West Bengal at 14, Beliaghata Road, Calcutta-15.

(d), 7-4-1994, 190 bags, sandalwood pieces had been seized from inside the godown of M/S. Macncil Barry Kilburn, Ex-employees Transport Co-opt. Society. Ltd. at 26/1, Satya Doctor Road, Calcut ta-23.

8. It is now well settled law that though the question whether the seizure under Section 110 of the Customs Act, 1962 was under a reasonable belief or not is a justiceable one, but once it is held that there was material, relevant and germane, the sufficiency of the material is not open to judicial review. The circumstances under which the officer concerned entertained reasonable belief have to be judged from his experienced eye who is well equipped to interpret the suspicious circumstances and to form a reasonable belief. [Indru Ram Chand Bharvani v. Union of India - 1992 (59) E.L.T 201 (S.C) : (1988) 4 SCC 1; State of Gujarat v. Mohan Lal - 1987 (29) E.L.T 483 (S.C) : (1987) 2 SCC 364 : AIR 1987 SC 1321]. In Union of India v. Lexus Exports Pvt. Ltd. reported in 1994 (71) E.L.T-348 (S.C) : (1997) 10 SCC 232, it was held by Supreme Court that the proceedings of seizure and confiscation are proceedings in rem.

9. The respondents in their Affidavit-in-Opposition stated that all the concerned goods under different shipping bills, fully, described in the show cause notice dated 18-8-1994 (Annexure ‘A of the application for interim order in FMAT No. 3832 of 1995) were detained and seized by the appropriate authority, on the reasonable belief that they are liable to confiscation under the Customs Act, 1962, inter alia, on grounds that the exporter who was the active partner of the petitioner had wrongfully attempted to export prohibited goods by untrue and false declaration and concealment. It was further stated in the said Affidavit-in-Opposition that the adjudication order under Section 51 of the Customs Act, 1962 in respect of the Shipping Bill No: EF-787, dated 14-2-1994 was wrongfully and improperly obtained by concealment and incorrect statement, and fraudulent action with the object of attempting to export prohibited goods. It was further stated in the Affidavit-in-Opposition that the said Order was stayed under order of the Additional Collector of Customs (Preventive), dated 25-2-1994, as also the Assistant Collector of Customs (Preventive), Dock intelligence Unit and the goods were detained and seized. It further appears from the Affidavit-in-Opposition that thereafter in accordance with the Provisions of the Customs Act, 1962 and in particular Section 124 thereof the Customs authorities have issued a show cause notice to the partner of the writ petitioner on 18-8-1994 giving the facts and circumstances as also evidence asking him to show cause as to why the said goods should not be confiscated and fine and penalty be imposed on the partner of the petitioner. The respondents in their Affidavit-in-Opposition, inter alia, stated:

“That the container in question was detained on 26-2-1994 on the reasons to believe that the consignment contained contraband. Such belief was justified as it became evident that the aforesaid consignment did actually contained contraband i.e 50 bags sandalwood pcs. the export of which was prohibited under the Export & Import Policy, 1992-97.”

10. It appears from the Affidavit-in-Opposition that the container was detained on 26-2-1994 and the samples were drawn on 1-3-1994. In the Affidavit-in-Opposition the respondents, in ter alia, stated as follows:

“It was distinctly evident that the loading of the goods, receipt of the same in the godown and escorting of them to the Dock Gate were all carried out and supervised by the representative of M/s. Tirupati Trading Corporation. The consignment under the Shipping Bill No. EF-787, dated 14-2-1994 A/C. Tirupati Trading Corporation was loaded inside the Container directly from the Lorries under the supervision of the representative of the Clearing Agency firm M/s. Shaikh & Pandit, Calcutta, directly from the lorries with the active participation of the persons engaged by M/s. Shaikh and Pandit for and on behalf of M/s. Tirupati Trading Corporation, the loading of 50 bags of sandalwood pcs. at the rear portion of the container and thereafter covering them with 150 bags of Refuse (dust material) would clearly show that there was no mistake on the part of any person in loading the goods in the godown, in carrying the same to the dock and thereafter in loading the same inside the container at 6, Khidderpore Dock, Calcutta.

All the aforesaid acts were carried out in planned way to smuggle 50 bags sandalwood pcs the container in question was detained on 26-2-1994 on the reasons to believe that the consignment Contained contraband. Representative Samples were drawn on 1-3-1994 for Chemical Test of the Refuse (dust material). The concealment of 50 bags of sandalwood pcs. inside the container in which a consignment of 200 bags Refuse for Joss Sticks, as declared in the Shipping Bill EF-787, dated 14-2-1994 A/c. Tirupati Corporation, could be found out only on 3-3-1994 at the time of destuffing of the bags of Refuse (dust materials). It then became evident that 150 bags of Refuse (dust material) were used for concealment and carrying of 50 bags, sandalwood pcs. inside the said container. It was then not required, and also not became necessary to wait for having the Test result of the samples so drawn out of the bags of Refuse (dust material). The goods consisting of 150 Refuse (dust material), used for concealment and carrying of 50 bags of sandalwood pcs. loaded inside the container MISU-909625-9 (20) are therefore liable to confiscation under Section 109 of the Customs Act, 1962, as discussed in details and thereby communicated in the Show Cause Notice already issued in the matter.”

11. The respondents in their Affidavit-in-Opposition further stated:

“I say that in his Voluntary statement it was disclosed by Chandra Prakash. Bharech that he came to know in the morning of 17-2-1994 that a truck containing 150 bags of cargo, cleared by his representative from Howrah Railway Station and despatched for storing in Kilburn Godown, did not reach the godown. He; thereafter himself went and met the concerned officer (com-. mercial Tax Authority) to clarify the position. He also came to know on the very day of 17-2-1994 that only 150 bags of Refuse (dust material) reached the godown and were stored there, from his representative who made allarrangements for storing of the cargo in the godown on the other hand he had again admitted in his Voluntary statement (answer no, five of page 05 of his statement) to the effect having come to know about the said detention, I had submitted two petition to the authorities along witha copy of Shipping Bill No. EF-784, dated 14-2-1994 with complete set. The Shipping Bill No. EF-785, dated 14-2-1994 processed and passed from Customs, Calcutta, was for 140 gunny bags said to contain machine finished sandal wood knife handles M/s. India Sales International. Examination of the bags lying at the office of the Commercial Taxes, West Bengal, so covered under Shipping Bill No. EF-784, dated 14-2-1994 as claimed by the Sri Bharech of M/s. Tirupati Trading Corporation by the Customs Officers revealed that the consignment consisted of 100 bags of sandalwood pcs. and 50 bags dust material, the goods were therefore, justifiably seized by the Customs Officers on the reasons to believe that those were misdeclared and were attempted to be illegally exported out of India in violation of the Customs Act, 1962. In the Show Cause Notice already issued by the Department in the matter, it has been discussed in details the reasons for application of different sections of the Customs Act, 1962, pertaiiri-ing to the seizures made by Customs Officers at different places on-different dates. It was already discussed earlier that there was no question of mistake or mixing up of any goods at the time of loading in the said lorry and at the time of their subsequent load loading in the container. It was also discussed, as incorporated in the Show Cause Notice issued by the department, that 150 bags of Refuse for Joss Sticks (dust materials) as declared under Shipping Bill No. EF-787, dated 14-2-1994 were seized under Section 119 of the Custom's Act, 1-962 as the said goods were used for concealment and carrying, and thereby illegal exportation of 50 bags of sandalwood pcs. in violation of the provisions of the Customs Act, 1962 read with the Export and Import Policy, 1992-97.”

12. Under these circumstances it is evident that there, were relevant and germane materials and circumstances on the basis of which the proper officer had reason to believe that the goods are liable to confiscation Under the Customs Act, 1962, therefore, seized those goods under Section 110 of the Customs Act, 1962, Therefore, the seizures were made in accordance with the provisions contained in Section 110 of the Customs Act, 1962.

13. On behalf of the petitioner it was argued that no notice had, been given to the petitioner under Clause (a) of Section 124 of the Customs Act, 1962 within six months of the seizure of the goods, and, therefore, the petitioner under Section 110(2) of the Customs Act, 1962 is entitled to get back the possession of the goods seized. The seizu ??? where made 3-3-1994, 10-3-1994 and 7-4-1994 and the show cause notice for the purpose of confiscation was issued on 18-8-1994 and the notice was addressed to the petitioner one of the partners of the petitioner and the clearing agent of the petitioner and to some others. From the Affidavit-in Opposition filed by the respondents it appears that one Chandra Prakash Bharech is a partner of the petitioner and from the notice dated 18-8-1994 it is evident that the notice was also sent to said Chandra Prakash Bharech. In respect of a partnership firm service of show cause notice for confiscation upon a partner amounts to good service of show cause notice under Section 124 of the Customs Act, 1962, No allegation has been made that said Chandra Prakash Bharech did not get the notice within six months from the date of seizure. Under these circumstances this Court holds that notice under Section 124 of the. Customs Act, 1962 was served upon the petitioner within six months from the dates of seizure and therefore, Section 110(2) of the Customs Act, 1962 has no manner of application in the facts and circumstances of the present case.

14. Paragraph 8 of the Chapter IV of the Export and Import Policy (1st April, 1992 to 31st March, 1997) laid down that exports and imports may be done freely except to the extent that they are regulated by the provisions of this policy or any other law for the time being in force. In Paragraph 9 of the policy it had been laid down that the Central Government may, in public interest, regulate the import or export of goods by means of a negative list of imports or a negative list of exports, as the case may be. In Paragraph 10 of the Chapter IV of the Policy it had been laid down that the negative lists may consist of goods, the import or export of which is prohibited, restricted through licensing or otherwise or canalised. The negative list of imports and the negative list of exports shall be as contained in this policy. In Paragraph 11 of Chapter IV of the Policy it had been laid down that prohibited goods shall not be imported or exported. It appears from Chapter XVI of the Policy that negative lists of exports under the heading “prohibited items” contained “sandalwood in any form, but excluding fully finished handicrafts made out of sandalwood and machine finished sandalwood products”. Admittedly the goods which were tried to be exported and seized were made of sandal wood. Whether those goods are covered by the exclusionary provision will be decided by the competent authority under Customs Act, 1962.

15. It appears from Annexure ‘A’ of the application for interim order in FMAT No. 3832 of 1995 that the Notice dated 18-8-1994 under Section 124 of the Customs Act referred to the following seizures:

1. 200 gunny bags containing sandalwood pcs. from inside the con tainer No. NKAV-201290-1(20) at 6 K.P.D on 3-3-1994.

2. 130 bags dust material and 50 bags sandal wood pcs. from inside the container No. EISU-309625-9(20) at 6, K.P.D on 3-3-1994.

3. 100 bags sandalwood pcs. and 50 bags dust material from the office of the Commissions of Commercial Taxes, West Bengal at 14, Beliaghata Road, Calcutta-15, on 10-3-1994, collectively valued at Rs. 86.5 lakhs.

4. 190 bags sandalwood pcs. from inside the godown of M/s. Macheill Barry Kilburd, Ex-employees Transport Co-operative Society Ltd. at 26/1, Satya Doctor Road, Calcutta-23 on 7-4-1994.

16. Thus it is apparent that the notice for confiscation under Section 124 was given well within six months from the dates of seizures. It appears that a notice was sent to the petitioner firm and also some others including Shri Chandra Prakash Bharech who according to the respondents was a partner of the petitioner firm. There was no denial made by the petitioner regarding this statement of the respondents. Therefore, it is apparent that within six months from the date of seizure the notice of confiscation under Clause (a) of Section 124 was served upon at least on one of the partners of the petitioner which amounts to good service upon the petitioner. Therefore, the petitioner cannot get the benefit of Section 110(2) of the Customs Act, 1962 and is not entitled to get back the seized goods. Since the show cause notice under Clause (a), of Section 124 of the Customs Act, 1962 has been issued in terms of provision of law such notice cannot be interfered with. In view of the reasons stated hereinabove the appeal fails and the same is dismissed. The appellant petitioner is directed to pay the costs of litigation assessed at Rs. 5,100/- which should be paid within four weeks from the date of this judgment. Interim order, if any, is vacated.

(D.P Kundu, J.)

V.K Gupta, J.:— I agree.

17. After the judgment was pronounced in the Open Court, learned Advocate appearing for the Appellant, made an oral prayer for stay of the operation of this judgment.

18. The prayer, on consideration, is rejected. However, we direct that the certified copy of the judgment be issued expeditiously.