Imagine this situation.
A passenger is intercepted at an international airport.
Customs officers recover goods which, according to them, are liable to confiscation under Section 111 of the Customs Act, 1962.
The passenger’s statement is recorded.
A printed form is placed before him.
Somewhere in that form appear words such as:
“I do not want a written show-cause notice or personal hearing.”
Or perhaps:
“Oral SCN received.”
Months later, the Department confiscates the goods.
The passenger approaches the High Court and asks a deceptively simple question:
Where is the show-cause notice required by Section 124?
The Department responds:
It was given orally.
And suddenly a seemingly minor proviso to Section 124 becomes the centre of the entire confiscation proceeding.
The real question is no longer merely:
Can a show-cause notice be oral?
The more important question is:
How does Customs prove that a legally valid oral show-cause notice was actually communicated?
That is where recent judicial decisions have made this provision far more interesting than it initially appears.
SECTION 111 CREATES LIABILITY TO CONFISCATION — SECTION 124 CONTROLS HOW CONFISCATION CAN BE ORDERED
Section 111 of the Customs Act identifies different situations in which improperly imported goods may become liable to confiscation.
But liability to confiscation is not the same as an order of confiscation.
Between the two stands Section 124.
The statutory command is emphatic:
No order confiscating goods or imposing penalty under the relevant Chapter can be made unless the person concerned receives:
- notice informing him of the grounds of proposed confiscation or penalty;
- an opportunity to make a representation against those grounds; and
- a reasonable opportunity of being heard.
The normal rule under Section 124(a) is a written notice, with the statutory approval contemplated by the provision.
Then comes the first proviso:
the notice under clause (a) and representation under clause (b) may, at the request of the person concerned, be oral.
Those few words create an extraordinary exception.
But they also contain the key to understanding the entire provision.
CUSTOMS CANNOT CHOOSE THE ORAL ROUTE — THE PERSON CONCERNED MUST CHOOSE IT
The proviso does not say:
“The proper officer may issue an oral notice whenever considered convenient.”
It says that the notice may be oral:
“at the request of the person concerned.”
That distinction is fundamental.
The Madras High Court explained this decades ago in Ibrahim Ismail v. Superintendent of Customs.
The Court held that the oral procedure is not an alternative procedure available to Customs at its own discretion. It becomes available only when the affected person elects to receive an oral notice and make an oral representation.
The person is not surrendering his right to notice.
He is merely choosing the mode in which the notice will be communicated.
This produces the first legal formula:
RIGHT TO NOTICE ≠ WAIVED
but
MODE OF NOTICE: WRITTEN → ORAL
That distinction has become increasingly important in recent litigation.
“I WAIVE SCN” IS NOT NECESSARILY THE SAME AS “I REQUEST AN ORAL SCN”
Consider the language of the proviso carefully.
It does not contemplate:
“I waive the show-cause notice.”
It contemplates:
“I request that the show-cause notice be oral.”
Those two propositions are legally different.
A waiver says:
Do not give me notice.
A request under the proviso says:
Give me notice, but communicate it orally.
Section 124 permits the second.
Whether it permits Customs simply to dispense with the notice altogether is another matter.
And this distinction became critical before the Delhi High Court.
SHUBHANGI GUPTA: “WAIVER” COULD NOT SUBSTITUTE FOR THE NOTICE ITSELF
In Ms Shubhangi Gupta v. Commissioner of Customs, decided on 4 November 2024, Customs relied upon a statement recorded under Section 108 in which the passenger was said to have indicated that she did not require a show-cause notice or personal hearing.
When the matter reached the Delhi High Court, Revenue argued that an oral show-cause notice had been issued.
The Court looked for evidence of exactly that.
It found none.
There was no assertion in the counter-affidavit establishing that the passenger had actually been orally called upon to show cause against confiscation.
The Department’s case was effectively based upon waiver.
The High Court rejected that approach and observed that there was no provision permitting the statutory notice simply to disappear through such a waiver.
The seized article was ordered to be released.
This decision produces an important principle:
WAIVER OF WRITTEN SCN ≠ PROOF OF ORAL SCN
There must still have been a notice.
There must still have been communication of grounds.
And there must be some legally credible way of proving that this happened.
THEN CAME THE “STANDARD PRINTED FORM” CASES
The problem became even clearer in Amit Kumar v. Commissioner of Customs, decided by the Delhi High Court in February 2025.
The Department relied upon a printed document titled broadly as a request for release of detained goods.
The form already contained statements to the effect that:
- the person did not want a written SCN;
- personal hearing was waived; and
- an oral SCN had been received.
The Court was not impressed.
It reasoned that when a person is seeking release of detained goods, merely obtaining his signature on a pre-printed form containing these declarations does not necessarily demonstrate an informed and conscious exercise of rights.
The Court emphasised that such waiver must be conscious and informed.
The same concern was reiterated in Makhinder Chopra v. Commissioner of Customs. The Delhi High Court again held that a standard-form undertaking waiving SCN and personal hearing did not satisfy Section 124 merely because it contained printed language recording receipt of an oral SCN.
A similar approach followed in Mohamed Shamiuddeen v. Commissioner of Customs, where Revenue again relied upon a standard-form waiver, but the Court stressed that no proper SCN had been issued despite Customs possessing the person’s contact information.
The judicial message appears increasingly clear:
A signature underneath pre-printed words “ORAL SCN RECEIVED” may not, by itself, prove that a legally meaningful oral SCN was actually communicated.
THE 2026 KERALA HIGH COURT DECISION MAKES THE PROBLEM EVEN CLEARER
The issue is not confined to airport passengers.
In Mr Care Centre Private Limited v. Commissioner of Customs, decided by the Kerala High Court on 31 January 2026, the dispute concerned imported flashlights.
The Court noticed that no show-cause notice contemplated by Section 124 had been issued.
Revenue referred to the proviso permitting an oral notice.
But the adjudication order contained no reference to the importer having requested an oral SCN.
The Court therefore found that the proceeding culminating in confiscation could not be sustained on that basis.
That decision reinforces the fundamental statutory sequence:
NO REQUEST → NO ORAL ROUTE
The oral procedure does not arise merely because Customs later says that the person knew what the case was about.
THEN HOW IS AN ORAL SHOW-CAUSE NOTICE “SERVED”?
Strictly speaking, perhaps the better expression is not served, but communicated.
A written notice leaves behind an obvious evidentiary trail:
Document → signature → dispatch → service → contents.
An oral notice leaves behind none of these automatically.
That creates the central paradox of Section 124:
The law allows the communication to be oral, but judicial review later requires proof of what was orally communicated.
Therefore, an oral SCN should never mean an unrecorded SCN.
The Department needs contemporaneous evidence of four separate facts:
REQUEST
Did the person actually request oral notice?
COMMUNICATION
Was an oral notice actually given?
CONTENT
What grounds of confiscation or penalty were communicated?
OPPORTUNITY
Was the person genuinely permitted to answer those grounds?
If any of these links disappears, the Department may later find itself trying to prove an invisible proceeding.
THE FIRST DOCUMENT SHOULD RECORD THE REQUEST — NOT A “WAIVER”
A legally safer record would not merely state:
“I waive SCN.”
It should record something substantially more precise:
“I request that the notice contemplated under Section 124(a) of the Customs Act, 1962 be communicated to me orally in terms of the first proviso to Section 124.”
If the person also wants his representation under Section 124(b) to be oral, that should separately be recorded.
Why?
Because the proviso is triggered by the person’s request.
The record should therefore establish the statutory jurisdictional fact that permits Customs to leave the normal written route.
Ideally, it should show:
- date;
- time;
- place;
- language understood by the person;
- signature/thumb impression;
- name and designation of officer; and
- interpreter details, where relevant.
The objective should not be to manufacture evidence afterwards.
The objective should be to create a contemporaneous record of what actually occurred.
That distinction is critical.
SECOND: THE GROUNDS THEMSELVES MUST BE RECORDED
Suppose the departmental proceedings sheet merely states:
“Oral SCN explained.”
What exactly was explained?
Was confiscation proposed under Section 111(d)?
Section 111(l)?
Section 111(m)?
Was the allegation non-declaration?
Misdeclaration?
Prohibited import?
Concealment?
Undervaluation?
Was penalty under Section 112 also proposed?
The whole purpose of Section 124(a) is to inform the affected person of the grounds on which confiscation or penalty is proposed.
Therefore an oral SCN should, in substance, communicate the same essential case that would otherwise appear in a written notice.
A proper contemporaneous memorandum could record:
Goods involved
→ description, quantity and value.
Proposed statutory provision
→ e.g. Section 111(d), 111(l), 111(m).
Material allegation
→ the specific act or omission relied upon.
Penalty proposed
→ where applicable, the corresponding penal provision.
Evidence relied upon
→ examination report, declaration, invoice, statement, valuation material or other relied-upon material.
Only then can a reviewing court know whether the adjudication order remained within the boundaries of the case actually put to the person.
AN ORAL SCN CANNOT BECOME A LICENCE FOR A SURPRISE ADJUDICATION ORDER
This point is particularly important.
Suppose the passenger is orally told:
“You failed to declare dutiable goods.”
But the adjudication order later confiscates the goods on an entirely different theory:
“The invoice value was fraudulent and the goods were deliberately undervalued.”
Was that second allegation ever put to the person?
If not, merely saying that “oral SCN was issued” should not cure the problem.
Section 124 is not satisfied by informing the person that Customs generally has a problem with his goods.
It requires communication of the grounds of proposed action.
The adjudication order must therefore remain anchored to the case actually communicated.
WHAT ABOUT PRIOR APPROVAL UNDER SECTION 124(a)?
There is another interesting legal question.
Section 124(a), after amendment, speaks of written notice with prior approval of a Customs officer not below the prescribed level, currently an Assistant Commissioner of Customs.
The proviso then says that the notice referred to in clause (a) may, at the person’s request, be oral.
Does opting for an oral notice dispense only with the requirement that the notice be in writing, or does it also dispense with the safeguard of prior approval?
The statutory text can generate debate.
There appears to be little reason, as a matter of cautious administration, to allow an oral route to become less controlled than the written route.
Therefore, unless authoritative precedent settles the point differently, the safer departmental practice would be to obtain and preserve the appropriate approval before communicating the oral grounds.
That would prevent an additional challenge that the oral route was used to bypass a safeguard attached to Section 124(a).
SECTION 124(c) DOES NOT VANISH
Another mistake is possible.
The proviso expressly refers to:
clause (a): notice
and
clause (b): representation.
It does not similarly say that the requirement contained in clause (c) disappears.
Clause (c) requires:
a reasonable opportunity of being heard.
Thus:
REQUEST FOR ORAL SCN ≠ AUTOMATIC WAIVER OF PERSONAL HEARING
If the person does not wish to avail a hearing, that position should itself be clear, informed and contemporaneously recorded rather than mechanically bundled into a standard form.
Recent Delhi High Court decisions demonstrate why a pre-printed simultaneous waiver of SCN, representation and personal hearing can become vulnerable.
THE PERSON’S ORAL DEFENCE MUST ALSO LEAVE A RECORD
The evidentiary problem operates both ways.
If Customs is allowed to give its case orally, the person is also permitted, upon request, to make the representation contemplated by Section 124(b) orally.
Suppose he says:
“I declared the goods.”
or:
“These are my personal effects.”
or:
“The invoice relied upon by Customs relates to different goods.”
or:
“Section 111(m) cannot apply because there is no misdeclaration in the Bill of Entry.”
If the adjudicating authority does not record those submissions, how will an appellate authority later know what defence was actually advanced?
The proceedings sheet should therefore record the material oral representation.
Ideally, the person should be given an opportunity to confirm that his oral submissions have been correctly recorded.
This protects both sides.
THE BEST EVIDENTIARY CHAIN FOR A VALID ORAL SCN
A defensible oral Section 124 proceeding should leave behind something resembling this chain:
PERSON VOLUNTARILY REQUESTS ORAL SCN
↓
REQUEST RECORDED CONTEMPORANEOUSLY
↓
REQUIRED APPROVAL SAFELY PRESERVED
↓
SPECIFIC GROUNDS OF CONFISCATION / PENALTY COMMUNICATED
↓
DATE + TIME + LANGUAGE + OFFICER RECORDED
↓
ACKNOWLEDGEMENT OF UNDERSTANDING
↓
ORAL REPRESENTATION RECORDED
↓
SEPARATE REASONABLE OPPORTUNITY OF HEARING
↓
ADJUDICATION CONFINED TO COMMUNICATED GROUNDS
This approach does not convert an oral SCN into a written SCN.
The communication remains oral.
What becomes written is the evidentiary record proving that the statutory exercise took place.
That is entirely different.
AUDIO OR VIDEO RECORDING — USEFUL, BUT NOT A SUBSTITUTE FOR PROCEDURE
Modern technology offers additional methods of corroboration.
Where lawfully permitted and institutionally authorised, an oral proceeding could potentially be supported by:
- audio/video recording;
- CCTV footage;
- digital proceedings sheet;
- timestamped e-office record;
- interpreter certification;
- presence of authorised representative; or
- independent witnesses where appropriate.
But technology should corroborate statutory compliance.
It cannot cure the absence of compliance.
A video recording showing an officer telling a passenger:
“Sign here; you don’t need an SCN”
would prove the wrong thing very efficiently.
The essential legal questions remain:
Did the person request the oral mode?
and
Were the grounds actually communicated?
SECTION 110(2): WHY THIS EVIDENTIARY FAILURE CAN BECOME EXPENSIVE
The problem becomes particularly serious where goods have been seized.
Under Section 110(2), where seized goods are concerned and no notice under Section 124(a) is given within six months, the goods are ordinarily required to be returned.
The Commissioner may extend the period, for recorded reasons, by a further period not exceeding six months and must inform the person before expiry; the statute also contains a separate proviso concerning cases where provisional release under Section 110A has been ordered.
Therefore, imagine the Department reaching the end of six months and saying:
“We do not need to issue a written SCN because an oral SCN was already given.”
If a court later finds no credible evidence that:
- the person requested oral notice; or
- the grounds were actually communicated,
the problem is no longer merely procedural.
The consequence may directly affect the continued retention of the seized goods.
That is exactly why Shubhangi Gupta is so significant. The Delhi High Court found Section 124 had not been complied with and directed release.
THE REAL LESSON FROM THE RECENT CASES
The emerging judicial trend does not appear hostile to the statutory concept of an oral SCN.
The Madras High Court had already upheld that mechanism.
What courts are resisting is something different:
A retrospective assertion of oral compliance without reliable proof.
The difference can be expressed simply:
VALID ORAL SCN
is not:
“THE FILE SAYS THE PERSON WAIVED SCN.”
Nor is it:
“A PRINTED FORM SAYS ORAL SCN RECEIVED.”
A valid oral proceeding should demonstrate:
VOLUNTARY REQUEST + ACTUAL COMMUNICATION + IDENTIFIABLE GROUNDS + REAL OPPORTUNITY TO DEFEND
That is the heart of Section 124.
“ORAL” DOES NOT MEAN “INVISIBLE”
That may be the most important takeaway.
A written show-cause notice proves itself through its document trail.
An oral show-cause notice must be proved through a proceedings trail.
The legislature has relaxed the mode of communication.
It has not relaxed the requirement of fairness.
It has certainly not authorised Customs to reconstruct an oral proceeding after litigation begins.
Therefore:
Evidence of oral service should be CREATED CONTEMPORANEOUSLY — never CREATED RETROSPECTIVELY.
The first is record-keeping.
The second risks becoming fabrication.
And that distinction can determine whether a confiscation order survives judicial review.
A DEEPER PRINCIPLE OF CUSTOMS ADJUDICATION
Section 111 determines whether goods may be liable to confiscation.
Section 124 determines whether the State may lawfully convert that liability into an adjudicated confiscation order.
That procedural bridge is not decorative.
It is part of the statutory protection against arbitrary deprivation of property.
The oral proviso does not demolish that bridge.
It merely allows the affected person to cross it through a different route.
The better legal formula therefore is:
SECTION 111
LIABILITY TO CONFISCATION
↓
SECTION 124
NOTICE OF GROUNDS + DEFENCE + HEARING
↓
ADJUDICATION
CONFISCATION / RELEASE / REDEMPTION FINE / PENALTY
Remove the middle step, and liability under Section 111 does not automatically become a valid confiscation order.
CONCLUSION: ORAL SCN IS AN EXCEPTION — NOT AN ESCAPE ROUTE
The first proviso to Section 124 serves a practical purpose.
There may be situations, particularly in passenger-baggage matters or uncomplicated cases, where the person wants immediate adjudication and does not want to wait for formal written proceedings.
The statute accommodates that choice.
But convenience cannot replace statutory fairness.
The emerging case law suggests that the following propositions deserve close attention:
First: Written SCN remains the normal statutory procedure.
Second: Oral SCN becomes available only at the request of the person concerned.
Third: Requesting oral notice is not the same as waiving notice altogether.
Fourth: A standard printed declaration may not establish a conscious and informed choice.
Fifth: Customs must still communicate identifiable grounds of proposed confiscation and penalty.
Sixth: The Department should contemporaneously record what was communicated and what defence was offered.
Seventh: Section 124(c)’s reasonable opportunity of hearing remains separately relevant.
Eighth: Section 110(2) can make failure to prove timely Section 124 notice consequential for retention of seized goods.
And finally:
SECTION 124 PERMITS ORAL COMMUNICATION — NOT INVISIBLE COMPLIANCE.
That may ultimately be the simplest test for determining whether an “oral SCN” is a genuine statutory proceeding or merely an evidentiary assertion made after the event.
Disclaimer
This article is intended for professional, academic and legal discussion. Facts and applicable law should be independently examined in each case before relying upon any proposition in adjudication or litigation.