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TMI Blog2024 (12) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that notices can be sent by email. Moreover, it is also unclear as to why all the notices which were sent have been returned as the Petitioner has categorically stated that there was no change of address. In the overall scheme of things and the facts which have emerged, this Court is of the opinion that owing to the fact that as per the Petitioner the entire amount of the shipping bills and foreign exchange have been realized, the Petitioner ought to be given an opportunity to reply to the Show Cause Notice and a hearing may be afforded to the Petitioner - The impugned order dated 10th November, 2022 is set aside. Let a fresh show cause notice be served upon the Petitioner on the email address. In addition the said show cause notice shall be served upon the ld. Counsel appearing for the Petitioner within one week. Petition disposed off. - JUSTICE PRATHIBA M. SINGH AND JUSTICE AMIT SHARMA For the Petitioner Through: Mr. Prem Ranjan Kumar, Adv. For the Respondents Through: Mr. Aakarsh Srivastava, Standing Counsel for Customs with Adv Anand Pandey, Adv. (M-9871094948). PRATHIBA M. SINGH, J. (ORAL) 1. This hearing has been done through hybrid mode. 2. The present writ petition un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner (BRC Cell) on 24th March, 2022, requesting submission of export proceeds details in the prescribed format and coordination with their bank for EDPMS updates. Subsequently, the Petitioner obtained certificates from the respective banker certifying the realization and upload of export proceeds from 1st April, 2014 to 31st March, 2018. The said documents were submitted to the Assistant Commissioner, however it is stated that the duty drawback amount remained unpaid. 7. In view of the non-payment, the Petitioner approached the High Court via W.P. (C) No. 10459/2022, leading to multiple hearings and assurances from the Respondent to process the drawback. While the drawback was eventually released, other consequential benefits remained pending, prompting further Court directions and adjournments for compliance. 8. In the meantime, the Petitioner received an Order-in-Original dated 10th November, 2022 wherein the allegation of the Customs Department was that in respect of certain exports which were made by the Petitioner, the actual realization of the amount in foreign exchange was belated and duty drawbacks could not have been availed by the Petitioner. Thus, the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost and the same has been complied with. However, no email was sent to the Petitioner. 14. The Court has considered the matter. As per the Order-in-Original, the duty drawback to the tune of Rs. 2,39,83,219/- has been held to be recoverable and interest and penalty has also been imposed upon the Petitioner. The amount is substantial. 15. The Court has also seen the documents which have been placed on record including the bank certificates which show that the amounts from the exports in the form of foreign exchange has been realised, though at a later stage, with some delay. All these aspects ought to have been considered by the Department before passing the Order-in Original. However, the same was not possible as the Petitioner was not served with the Show Cause Notice or the hearing notices. No reply to the SCN was filed and no hearing was actually held. 16. At this stage it is relevant to extract Section 153 of the Customs Act which reads as under:- 153. Modes for service of notice order, etc.--( 1) An order, decision, summons, notice or any other communication under this Act or the rules made thereunder may be served in any of the following modes, namely:-- (a) by giving or tend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of personal hearing on 13.09.2022, 20.09.2022 and 27.09.2022 but the letters of personal hearing were also returned undelivered by the postal Deptt. With the remarks left without instructions . Further, neither the export appeared for Personal hearing nor did submit any reply to the show Cause Notice till date. xxx xxx xxx 10.3 I find that the show cause notice and personal hearing was served to the exporter as per Section 153 of the Customs Act, 1962. It is also found that the said SCN and personal hearing letter also display at the notice board of this office, as per Section 153 (b) of the Custom, Act, 1962, 1 find that the SCN and personal hearing letter was undelivered by the Indian Post from this exporter M/s Bonanza Enterprises, and its Directors/ Partners Sh. Shkir Yakub Lodhia, as remark mentioned as Left without instructions . 19. A perusal of Para 10.3 would show that the notice appears to have been sent under Section 153 (b) of The Customs Act and on the display board of the Customs Department. Section 153 (b) only records notice by post or courier and not via email. 20. In the opinion of this Court, the provision itself makes it clear that notices can be sen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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