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2014 (8) TMI 771 - HC - CustomsPeriod of limitation issuance of SCN or Delivery of SCN - alleged that SCN given to the petitioner beyond the period of six months whether mere dispatch of a notice under Section 124(a) of the said Act would imply that the notice was given within the meaning of Section 124(a) and Section 110(2) of the said Act - Held that - Gujarat High Court had clearly held that mere dispatch of a notice to the address of a person does not complete the giving of a notice and that the same would only have been completed if the notice had reached the person concerned or after having been tendered to him had been refused by him. We may say at this juncture itself that we are in full agreement with the decision of the Gujarat High Court in the case of Ambalal Morarji Soni (1971 (7) TMI 156 - GUJARAT HIGH COURT) and are, therefore, of the view that the notices in the present petition had not been given before the terminal date specified in Section 110(2) of the said Act. Show cause notices under Section 124(a) of the said Act bears the dates which happens to be either the last date or the penultimate date of the stipulated period under Section 110(2) of the said Act. It cannot be expected that a document sent by registered post would be delivered on the very same day or even the next day in the ordinary course of post. Furthermore, Section 27 of the General Clauses Act is qualified by the words unless a different intention appears. That different intention is discernible from the expression informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. While the Madhya Pradesh High Court was right in observing that the object of Section 110(2) and Section 124(a) of the said Act read together was to apprise the concerned person of the grounds on which the confiscation of the goods or imposition of penalty was proposed, with respect, it was wrong when it concluded that when the legislature had used the words notice is given it would obviously mean that the notice must be issued within six months of the date of seizure . In our view, the expression notice is given does not logically translate to the conclusion that notice must be issued within the stipulated period . none of the petitioners reviewed the notices under Section 124(a) of the said Act within the time stipulated in Section 110(2) thereof - Following decision of CCE., INDORE Versus RAM KUMAR AGGRAWAL 2012 (9) TMI 112 - MADHYA PRADESH HIGH COURT and Ambalal Morarji Soni vs. Union of India and Ors supra - Decided in favour of assessee.
Issues Involved:
1. Interpretation of the term "given" in Section 110(2) and Section 124(a) of the Customs Act, 1962. 2. Compliance with the notice period under Section 124(a) of the Customs Act. 3. Applicability of Section 153 of the Customs Act regarding the service of notice. 4. Relevance of Section 27 of the General Clauses Act, 1897. Issue-wise Detailed Analysis: 1. Interpretation of the term "given" in Section 110(2) and Section 124(a) of the Customs Act, 1962: The core issue in these writ petitions was the interpretation of the word "given" as used in Section 110(2) and Section 124(a) of the Customs Act. The court analyzed whether the term "given" meant merely dispatching the notice or if it required the notice to be received by the person concerned. The court concluded that the term "given" implies that the notice must be received by the person from whom the goods were seized. This interpretation was supported by the Supreme Court's decision in K. Narsimhiah vs. H.C. Singri Gowda, which stated that "giving" is not complete unless it reaches the hands of the person or is tendered and refused. 2. Compliance with the notice period under Section 124(a) of the Customs Act: In the cases at hand, the court examined whether the notices were given within the stipulated period under Section 110(2). The court found that in all three cases, the notices were dispatched but not received by the petitioners within the six-month period or the extended period. The court emphasized that the objective of Section 124(a) is to inform the person of the grounds for confiscation or penalty, which can only be achieved if the notice is received. 3. Applicability of Section 153 of the Customs Act regarding the service of notice: The respondents argued that Section 153, which deals with the service of notices, should be considered. According to Section 153(a), service is deemed complete when the notice is sent by registered post. However, the court held that Section 153 defines the mode and manner of service but does not determine the time when a notice is "given." The court reiterated that the notice must be received to be considered "given." 4. Relevance of Section 27 of the General Clauses Act, 1897: The respondents also relied on Section 27 of the General Clauses Act, which states that service by post is deemed to be effected at the time the letter would be delivered in the ordinary course of post. The court, however, noted that this provision is qualified by the phrase "unless a different intention appears." The court found that the legislative intent in Sections 110(2) and 124(a) of the Customs Act required the notice to be received to inform the person of the grounds for confiscation or penalty. Conclusion: The court disagreed with the decisions of the Calcutta High Court and other High Courts that interpreted "given" as merely dispatching the notice. Instead, the court agreed with the Gujarat High Court's decision in Ambalal Morarji Soni, which required the notice to be received. Consequently, the court allowed the writ petitions and directed the respondents to release the seized goods unconditionally.
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