(Prayer: Petitions filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari to call for the records pertaining to the impugned Order-in-Original No.815/2020 dated 26.09.2020 passed by the Respondent in F.No.S.Misc/04/26/2018-DBK(AIR) and quash the same.)
Heard Mr.Hari Radhakrishnan, learned counsel for the petitioner and Mr.K.Ravi, learned Senior Standing Counsel for the respondent.
2. The short point that is involved in this Writ Petition, where the challenge is to an order of assessment dated 26.09.2020, passed in terms of the provisions of the Customs Act, 1962 (in short 'Act') is that it is not preceded by a pre-assessment notice or show cause notice.
3. The impugned order refers to a show cause notice that is issued to the petitioner (though no date is given for the same) that the respondent states, the petitioner did not respond to. Thereafter, the Officer goes on to say that a public notice was issued by the Commissioner of Customs notifying a personal hearing, scheduled between 6th and 18th of July, 2020 (open personal hearing) to all exporters on all working days between 11.00 a.m. and 5.00 p.m.
4. The noticees were afforded an opportunity of personal hearing through video conference to submit the required documents, scanned. This public notice is stated to be uploaded in the website of the Chennai Customs and also displayed on the Notice Board of the New Custom House, Chennai. Since there was no response from the petitioner, the Officer has proceeded to pass the impugned order. The aforesaid procedure, according to the revenue, satisfies the principles of natural justice.
5. A counter has been filed wherein at paragraph 3, the respondent refers to issuance of show cause notice (again no date is mentioned), by registered post on 21.01.2020. Mr.Ravi, fairly admits to the position that there is no acknowledgement of receipt for the same. He would also refer to the provisions of Section 153 as substituted by Finance Act, 2018 dated 28.03.2018 reading thus:
“153. (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 tendering it directly to the addressee or importer or exporter or his customs broker or his authorised representative including employee, advocate or any other person or to any adult member of his family residing with him;
(b) by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorised representative, if any, at his last known place of business or residence;
(c) by sending it to the e-mail address as provided by the person to whom it is issued, or to the e-mail address available in any official correspondence of such person;
(d) by publishing it in a newspaper widely circulated in the locality in which the person to whom it is issued is last known to have resided or carried on business; or
(e) by affixing it in some conspicuous place at the last known place of business or residence of the person to whom it is issued and if such mode is not practicable for any reason, then, by affixing a copy thereof on the notice board of the office or uploading on the official website, if any.
(2) Every order, decision, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed or uploaded in the manner provided in sub-section (1). (3) When such order, decision, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.”
6. Though service by affixture is one of the modes prescribed, is the method last preferred and must be taken recourse to, only if service by registered post or by other conventional modes, such as by tendering directly to the assessee, importer or exporter, are not successful.
7. In the present case, the Revenue has not placed on record any proof for receipt of acknowledgement of the show cause notice alleged to have been sent via Registered Post Acknowledgement Due (RPAD) and hence till one can hardly assume that the respondent has exhausted the direct metho
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ds of service. Service by indirect methods, such as publication and affixture (S.153 (1) (d) and (e) must be only after service by direct means set out in Section 153(1)(a),(b) and (c) have been attempted and established to have failed. 8. In the light of the discussion as aforesaid, finding that the impugned order has been passed in violation of the principles of natural justice, the same is set aside and the Writ Petition allowed. No costs. Connected Miscellaneous Petitions is closed.