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TMI Blog2012 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... yankar, Counsel, for the Respondent. [Order per : Abhay M. Naik, J.]. - This writ appeal is directed against the order dated 15th November, 2000 passed by the learned Single Judge of this Court in Miscellaneous Petition No. 44/1990, quashing thereby show cause notice dated 29-9-1989 (Annexure 10) issued by the Collector, Customs & Central Excise, Indore. 2. Short facts, leading to the present writ appeal, are that the petitioner-respondent was engaged in the business of Silver Refinery, being proprietor of Shri Ganesh Bullion Refinery. On 3-4-1989, a search was conducted at the shop of the petitioner-respondent and a seizure was made of 129.720 kilograms of silver and currency notes etc. A panchnama was prepared in the absence of the petitioner, copy whereof was annexed to the writ petition as Annexure-1. He was served with a show cause notice on 7-10-1989 in registered AD manner, copy whereof is placed on record as Annexure-10. Miscellaneous Petition No. 44/1990 was submitted with allegations that the said show cause notice was given to the petitioner beyond the statutory period of six months, as prescribed in Section 110 of the Customs Act, 1962. Accordingly, a prayer wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "11. "Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear days." According to him, notice under Clause (a) of Section 124 of the Customs Act, 1962 referred to in sub-section (2) of Section 110 thereof, can be said to be given only on service on the addressee. 7. In order to appreciate the rival contentions, we feel it necessary to reproduce the relevant portions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling which, the goods shall be liable to be returned to the person from whose possession they were seized. The object of this provision is to apprise such person of the grounds on which confiscation of the goods or imposition of penalty is proposed. In view of the object and purpose of this provision, the legislature in its wisdom has used the words "notice is given", which would obviously mean that notice must be issued within six months of the date of seizure. The purpose of this provision is to relieve such person, if the department sleeps over the matter for a period exceeding six months from the date of seizure, without issuing notice of intended confiscation of the goods or imposition of penalty. Its purpose will not be frustrated, if the notice, though is given within six months of the seizure of the goods, is not served on such person within six months. On the contrary, if the same is construed so as to mean service within six months from the date of seizure, such person may avoid the service of notice for a period up to six months and may further take undue advantage by invoking sub-section (2) of Section 110. Needless to say that notice may be given by invoking the mode o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 110 may be obtained. This perhaps may be the reason that the legislature did not use the words "notice in respect thereof is served" in place of "no notice is respect thereof is given". It may further be seen that the petitioner himself in paragraph 13 of the writ petition has clearly mentioned that he is in receipt of the said notice. Thus, the object of the notice for the purpose of Section 110(2) of the Act stands achieved. 13. We may successfully refer to the Division Bench decision of the High Court of Calcutta in the case of Union of India v. Kanti Tarafdar [1997 (91) E.L.T. 51 (Cal.)]. While dealing with Section 110(2), 124 and 153 of Customs Act, 1962, it has been observed :- "28. Therefore, the real object of the notice under Section 110(2), which is required to be issued in writing as provided in Section 124 and which is required to be given within six months, is to give the authority concerned a time-limit of six months to make out a case for confiscation of the goods seized. 29. Once the authority concerned makes out a case for confiscation within the time-limit, it cannot be sit idle. It has to make the concerned person aware of such case by givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l upon general provision, we are of the view that special procedure for service of notice as provided for in the Act should prevail over the general enactment of giving of notice. 35. We, therefore, conclude that Section 153 of the Act controls Section 110(2) of the Act and a notice which is required to be given under Section 110(2) should be given in a manner provided in Section 153 and by no other means. 36. The word "serve" in legal connotation means to make legal delivery (a process or writ) on or upon (a person) or to present (a person) with a writ. (See the Shorter Oxford English Dictionary, re-print of 1988 at Page 1949). Therefore, is legal parlance serving is giving. 37. Under Section 153 of the Act, service is either by personal delivery (tender) or by putting it into transmission by registered post in case both are possible. 38. Thus, the logical conclusion would be that service of a notice will be complete either by tendering or by sending the same by registered post, since the legislature has equated both the situations by using the word "or". 39. In the event of the notice is tendered, the date on which the same was tendered should be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in it is missing in Section 110(2) as well as Section 124 of the Act. Instead, the word 'given' is there in these two provisions which goes to show that the show cause notice must be given before expiry of six months and issuance of notice by registered post within six months is a sufficient compliance in the eye of law, moreso, when the same has been received by the respondent as has been admitted in paragraph 13 of the writ petition. Neither Section 110(2) nor Clause (a) of Section 124 of the Act contemplates service of notice in strict sense within a period of six months from the date of giving/issuing the same by registered post which mode has been prescribed under the Act. It merely speaks about giving of the notice. Keeping in view the object and purpose of the two provisions, it cannot be said that the legislature intended to achieve service of notice within six months from the date of seizure. Thus, the impugned order is also found to have been passed, without considering the object and purpose of the said provisions. Consequently, the impugned order is not found sustainable in law. 16. Resultantly, the appeal succeeds and is hereby allowed. The impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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