2020 (8) TMI 745 - HC - Customs

Non-Service of notice - Section 153 of the Customs Act - Non-fulfilment of export obligation - rebuttal of presumption - first respondent issued notices dated 12.11.2018 informing the petitioner that the export obligation period for the licence in question had already expired - demand of differential duty alongwith interest - HELD THAT - Admittedly, the petitioner did not intimate the respondents about the shifting of their registered office. When I posed a specific question in this regard, the learned counsel appearing for the petitioner drew my attention to Section 153(1) of the Customs Act which enables the Authority to serve the notice not only on the petitioner but also on his customs broker. The imports in this case have been taken place only through an authorised customs house agent namely Zion Logistics. Admittedly, in this case, the Authority has not served the notice on the petitioner's customs house agent. Section 153(3) of the Customs Act is not a conclusive presumption. It is rebuttable in nature. The petitioner had clearly averred that they had not received the notices issued by the first respondent. They have also stated that they had shifted the registered office way back in May 2017. The notices in question came to be issued only in November 2019 - Before amendment, the statute contemplated tendering the order, decision, summons or notice or sending it by registered post. Post amendment, the statute speaks of sending the aforesaid communications through registered post or speed post or courier with acknowledgment due. In this case, it is not confirmed as to whether the notice was sent with acknowledgment due. If that be so, the first respondent ought to be in a position to produce the signed acknowledgment card. If the cover had returned, the returned cover should be produced. In this case, neither the returned cover nor the signed acknowledgment had been produced. The presumption set out in Section 153(3) of the Customs Act has been rebutted. The first respondent has assumed that there has been zero compliance of the export obligation - Since the impugned orders assume that the petitioner has not at all complied with the export obligations, if I do not interfere, there would certainly be miscarriage of justice. It is this impels me to interfere on the ground of violation of principles of natural justice. The orders impugned in these writ petitions stand quashed. The matters are remitted to the file of the first respondent.

Summary

Issues involved:
Violation of principles of natural justice in serving notices under Section 153 of the Customs Act, 1962.

Detailed Analysis:
Issue 1: Violation of principles of natural justice in serving notices under Section 153 of the Customs Act, 1962

Summary: The writ petitions involved a challenge to notices issued by the first respondent to the petitioner regarding export obligations. The petitioner argued that the statutory requirement under Section 153 of the Customs Act had not been fulfilled, specifically claiming they did not receive the notices. The respondents contended that the notices were sent through speed post, citing Section 153(3) of the Customs Act. The petitioner stated they had shifted their registered office without informing the authorities, and the notices were not received. The court analyzed the evidence and legal provisions, ultimately finding that the presumption under Section 153(3) had been rebutted due to lack of acknowledgment of receipt. The court held that the first respondent did not comply with the statutory requirements of serving notices under Section 153(1) of the Customs Act.

Detailed Analysis: The petitioner argued that the notices were not received, claiming a change in the registered office address. The court acknowledged the petitioner's failure to inform the authorities of the address change but emphasized that the notices were not served on the customs house agent either, as allowed under Section 153(1) of the Customs Act. The court noted that the presumption under Section 153(3) was rebuttable, and in this case, the lack of acknowledgment due to non-receipt of notices indicated a failure to comply with statutory requirements.

Judgment: The court held that the first respondent did not serve the notices in the manner prescribed by law, leading to a violation of principles of natural justice. The court referred to precedents emphasizing the importance of complying with statutory notice provisions. The court concluded that the impugned orders were quashed, directing the first respondent to issue fresh notices and pass orders after a personal hearing in accordance with the law. The court highlighted the need for compliance with statutory procedures to ensure justice and fairness in such matters.