Cus - Affixing SCN on notice board of Customs House would arise only in event that notice 'cannot be served in manner prescribed' u/s 153: HC
By TIOL News Service
NEW DELHI, MAR 17, 2017: PETITIONER has impugned the order where by the gold brought by him into India was seized by the customs authorities.
It is the petitioner's case that after having worked for a few years in the UAE, on his way homewards, he purchased, from his earnings, gold weighing 580.67 grams for the purpose of his son's marriage.
On his arrival at the Delhi Airport on 14.08.2015, while he was still waiting to receive his luggage from the conveyor belt, and even before he could take the same for declaration to the Customs Authorities at the Red Channel counter, he was questioned by the Customs Authorities. The gold which was kept in his suitcase was seized and a Panchnama was prepared confirming the quantum of gold.
The petitioner has sought release of the same since no notice has been served upon him within six months of the said seizure.
The respondent, however, contends that a show cause notice was issued to the petitioner on 05.02.2016, which was well within the stipulated six months from the date of seizure of the goods; the notice was posted through Speed Post on the same date. It is further contended that a copy of the show cause notice was also pasted on the Notice Board of the Customs House in compliance with Section 153 of the Act; therefore, it would be deemed to be due notice, hence the petitioner's claim for release of the gold after expiry of six months' period is untenable; there has been no violation of principles of natural justice and the petitioner has failed to file a reply to the show causenotice.
It is further contended that the gold was imported with malafide intention of smuggling it into India, particularly since 21 pieces of the gold were coated in a white substance and the other four cut pieces were fitted in the body of the suitcase, which is an unusual way of carrying gold. This was an indicative of the petitioner's mensrea to smuggle the gold.
The High Court extracted the relevant provisions concerning the proceedings and observed -
+ Section 153 was amended with effect from 28.05.2012 to make it mandatory for service of notice by "registered post or by such courier as may be approved by the Commissioner of Customs" i.e. notice shall be served by the registered post to the person for whom it is intended or to his agent. In any case, service of notice through registered post or by courier is mandatory . It is only in the event of failure to serve by the aforesaid mode that the process of affixing the notice on the notice board of the customs house is to be followed.
+ Entry (in dispatch register) is not sufficient proof or notice in terms of the requirement of Section 153 of the Act. Therefore, the same cannot be accepted as proof of service of notice within six months of seizure of the goods as mandated under the Act.
+ In the present case, not only have the custom authorities failed to provide proof regarding service of notice, but also their counter affidavit is unsupported by any material proof of service.
+ In the present case, there has been no initiation of any formal enquiry or proceedings by the Customs Authorities after the seizure of the goods on 14.08.2015. Lastly, there is no deeming provision of service having been effected under Section 153(a) of the Customs Act, 1962.
+ Record of service by affixing the notice on the notice board of the customs house would arise only in the event that the notice "cannot be served in the manner prescribed under the said clause" as laid down under Section 153 (a).
Concluding that in terms of the unambiguous language of Section 110(2) of the Customs Act, 1962, in the absence of notice within six months of the seizure of the goods, the gold seized would have to be released back to the petitioner, the Writ Petition was allowed.
(See 2017-TIOL-502-HC-DEL-CUS)
