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TMI Blog2014 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months prescribed under Section 110(2) would expire on 28.04.2013. However, the Commissioner of Customs invoked the proviso and extended the period by an order-in-original dated 26.04.2013 by a further six months. Although the order-in-original mentions that the period was extended up to 08.10.2013 for issuance of a show cause notice, in view of the fact that the order expressly records that the period is extended by six months, we are treating the date given in the said order i.e., 08.10.2013 to be read as 28.10.2013. In other words, the notice under Section 124(a) had to be given on or before 28.10.2013. The show cause notice was dated 28.10.2013. It was sent by speed post to the petitioner and the tracking record indicates that the postal item was booked on 29.10.2013 and actually received by the petitioner on 30.10.2013. It is the case of the petitioner that signing of the show cause notice on 28.10.2013 was not sufficient compliance and that the same should have been received on or before 28.10.2013. It was further submitted that the notice was itself posted on 29.10.2013 which was, in any event, beyond the terminal date of 28.10.2013. 4. We shall now advert to the facts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 110(2) of the said Act? 7. The learned counsel for the petitioners placed reliance on a decision of the Supreme Court in the case of K. Narsimhiah vs. H.C. Singri Gowda: AIR 1966 SC 330. They also placed reliance on a decision of a Division Bench of the Gujarat High Court in Ambalal Morarji Soni vs. Union of India and Ors: AIR 1972 GUJ 126. Based on these decisions, the sum and substance of the submission on behalf of the petitioners was that the expression given used in Section 110(2) and also in Section 124(a) of the said Act was distinct and different from the word issued or served . Relying upon the said decisions, the learned counsel for the petitioners submitted that by the use of the word given the legislative intent was clear that the notice had to be received by the person concerned or the notice had to be offered/tendered and refused by the person concerned. Mere dispatch by post would not be covered by the word given as appearing in the above mentioned provisions of the said Act. 8. On the other hand, the learned counsel appearing on behalf of the respondents submitted that Section 153 of the said Act also needed to be considered. According to them, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. (underlining added) 11. Section 153 of the said Act reads as under:- 153. Service of order, decision, etc. Any order or decision passed or any summons or notice issued under this 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 of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. 12. On a plain reading of Section 110(2) of the said Act it is evident that the goods which have been seized under Section 110(1) of the said Act cannot be retained beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot given and so the meeting is invalid. We find it difficult to agree with the High Court that sending the notice amounts to giving the notice. 12. 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 dispatches 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. 16. We may note that the Supreme Court considered the ordinary meaning of the word giving and observed that it would not be complete unless it had reached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity of being heard in the matter. 7. Giving of the notice contemplated by Section 124 of the Customs Act and Section 79 of the Gold Control Act means that the notice must have been received because as pointed out by the Supreme Court in Narasimhiah s case, AIR 1966 SC 330 (supra) the giving of the notice is not complete unless and until it reaches the person concerned or its actual tender to him. Merely dispatching of the notice to the address of the person does not, complete the giving of the notice. In the instant case, therefore, the fact that the respondents dispatched the notices by post on November 5, 1968, would not complete the giving of the notice. The giving of the notice should have been complete on or before November 6, 1968 i.e., notices should have reached the petitioner on or before November 6, 1969 or should have been tendered to him before that date. That was not done in the instant case and, therefore, as from November 7, 1969, the civil right to get back the seized goods accrued to the petitioner. (underlining added) 18. From the above, it is evident that the Gujarat High Court had clearly held that mere dispatch of a notice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 124 and the words issue of show cause notice in Section 124 of the Act and the words Any ..notice issued in Section 153 of the Act. (underlining added) 20. We are afraid that we cannot agree with the observation of the Calcutta High Court that the word given as occurring in Section 110(2) of the said Act is controlled by the word issue of show cause notice as occurring in Section 124 of the said Act. The body of the provision of Section 124 of the said Act nowhere uses the expression issue of show cause notice . It is only the heading of that Section which uses that expression. On the contrary, the body of Section 124(a) of the said Act uses the exact same expression given as used in Section 110(2) of the said Act. Therefore, the very basis of the Calcutta High Court decision in Kanti Tarafdar (supra) is, with respect, incorrect. The same sentiment is expressed in paragraph 31 of the said decision where, once again, it is presumed that the word issued had been used in Section 124(a) of the said Act. We are also not in agreement with the observation that the word given used in Section 110(2) and Section 124(a) of the said Act is in any manner controlled by Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Unless a person receives the notice how can he said to be informed of the said grounds? Therefore, we do not see as to how Section 27 of the General Clauses Act, 1897, would in any way come to the aid of the respondents. 24. The decision of the Madhya Pradesh High Court in CCE, Indore (supra) also relies on Kanti Tarafdar (supra). We may point out that both the decisions, in Kanti Tarafdar (supra) and CCE, Indore (supra), noticed the Supreme Court decision in K. Narasimhiah (supra) but did not follow the same for reasons to which we do not subscribe. In CCE, Indore (supra) also the Madhya Pradesh High Court came to the conclusion that it did on the understanding that Section 124 of the said Act requires issuance of a show cause notice. This would be evident from paragraphs 8 and 9 of the said decision which read as under:- 8. Perusal of the aforesaid provisions makes it clear that sub-section (2) of Section 110 conferred a right on the respondent to seek the return of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 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 of registered post, which seems to have been prescribed by virtue of Section153 of the said Act. 25. 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 . 26. For the above reasons, we do not agree with the view taken by the Calcutta High Court in Kanti Tarafdar (supra) which has been followed by some other High Courts. We find ourselves to be in e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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