SERVICE OF NOTICE/ORDER

[Mr. M. GOVINDARAJAN]

Section 153 of the Customs Act deals with the service of order, decision etc., It provided that any order or decision passed or any summons or notice issued under the Customs Act, shall be served-

(a)  By tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or

(b)  If the order, decision, summons or notice cannot be served in the manner provided in clause (a) by affixing it on the notice board of the customs house.

The department is bound to send notice in the manner prescribed in Section153. The Department is to send the notice or order to the address as per the record and they are not entitled to change the address. The Department cannot unilaterally change the address unless there is a specific request from the party that their address has been changed.

In ‘ETA General Private Limited V. Commissioner of Customs, Chennai’ - 2012 (12) TMI 163 - MADRAS HIGH COURT the Assistant Commissioner of Customs made a demand of Rs.4,91,000/- for 3 bills of entry with interest on failure to produce the B-15 Registration certificate issued to the supplier of the goods which were cleared provisionally. The Commissioner of Customs (Appeals), Chennai, on the appeal of the assessee, set aside the order and remanded the matter back to the original authorities for de novo enquiry. In the de novo enquiry the Adjudicating Authority issued notices on various dates calling upon the petitioner to appear for personal hearing. The petitioner failed to appear on the dates mentioned and there the authority had no other option except to proceed further. He confirmed the demand. This order has been challenged by the petitioner in the present writ petition.

The petitioner submitted before the Court on the following grounds:

• No notice of personal hearing was served on the petitioner and therefore there was a denial of opportunity;
• The order of Original Authority dated 7.3.2012 was not served on the petitioner and therefore great prejudice and hardship is caused;
• The impugned order came to be served on a non existent address and besides it was not served on the proper person;
• There is no building in the said address as the building has been demolished in the year 2009 itself and the company is not functioning in that address since then;
• It is not a service in accordance with Section 153 of the Customs Act.

 The petitioner, therefore, prayed to set aside the proceedings of the Original Authority.

 The Department produced the original file before the Court to repel the above plea and contended as below:

• Order-in-Original No.7688/2008-Gr.5B passed by the Assistant Commissioner of Customs was based on the petitioner’s address of M/s ETA General Private Limited, Seethalakshmi Chambers, 5^th Floor, 688 Anna Salai, Chennai – 600 006, which is as per record;
• Appeal was also filed before the Commissioner of Customs (Appeals), Chennai showing the same address;
• Column 5 of the Memo of appeal which deals with notice to be sent to the appellant also contains the same address;

The Court found that it is evident from the original file, the order of the Commissioner of Customs (Appeals) is sent to the alleged address, the fact of which was not disputed by the petitioner. The petitioner agreed on the receipt of the order of Commissioner (Appeals). In de novo proceedings the notices and order was sent to the address as noted by the petitioner. There is no intimation by the petitioner about the change of address thereafter. The Department cannot send the order to any other address except the one as per the record. That will amount to improper service.

The Department has shown the original file to show dispatch of the order on 08.03.2012 by speed post acknowledgement due. Therefore the service is in order.   The Court did not accept the plea of the petitioner that there was no proper service. Failure to appear in response to the notice is the peril of the petitioner and consequences follow. The Court further held that one other aspect which has to be considered against the petitioner and in favor of the Department is that, assuming without admitting that the department knew the other address of the petitioner in other proceedings, it is of no consequence. The Department will deal with each file separately.

The petitioner received the order of Commissioner (Appeals) in the alleged address. If the petitioner’s plea is that there was no building at all on that date, as to how the petitioner received the appellate authority’s order is a question has to be answered by the petitioner and not by the Department. This falsifies the petitioner’s plea of no service. The further plea of the petitioner is that he received one copy and filed the writ petition.   If that is the case, it is incumbent on the counsel to have verified the address when he received the appellate authority’s order and intimated it to the authorities in the de novo proceedings so as to change the address. The Counsel states that he had intimated so but no proof has been produced to support it. Therefore there is proper of service of notice/order in this case.

The High Court held that considering all the aspects the Court was of the opinion that the petitioner is not diligently prosecuting the matter.   Since there is lack of bona fides, the petitioner is not entitled to any relief and accordingly, the Court dismissed the writ petition.