In Addition To Notices By Speed Or Registered Post or Courier, Send Them on Email Addresses Also: Delhi HC To Customs Department
|The Delhi High Court ordered that the Customs Department ought to in future follow a system by which in addition to notices by speed post, registered post or courier, notices are also sent on the email address which is provided on the letterhead of the Petitioner or any authorised person
The Writ Petition before the High Court was filed under Articles 226 and 227 of the Constitution of India by the Petitioner-Exporter for quashing the impugned Order-in-Original holding the petitioner liable for violating the provisions of Section 75 (1) of The Customs Act, 1962, Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995 and Rule 18 of the Customs and Central Excise Duties Drawback Rules, 2017.
The Division Bench comprising Justice Pratibha M Singh & Justice Justice Amit Sharma clarified, “In the opinion of this Court, in order to avoid improper service to parties and to avoid ex-parte proceedings, it is incumbent that service of notices, communications and orders ought to be effected even through email and on the common portal, in addition to the traditional methods as per Section 153.”
Advocate Prem Ranjan Kumar represented the Petitioner while Standing Counsel for Customs Aakarsh Srivastava represented the Respondent.
It was the case of the Petitioner that it has been in the business of exporting readymade garments since 2001 and it had made certain exports to a Dubai-based entity for MMF Printed Scarves by various Shipping Bills with the total Free On Board (FOB) value of Rs 3,72,96,859.60 and total drawback amount claimed as Rs. 36,55,092.25. There were certain earlier inspections of the export consignments conducted by the Department of Revenue Intelligence (DRI) at the Mundra Port and representative samples of the export goods were drawn for further investigation.
The clearance of goods had been put on hold. The said proceedings were going on with the Department and an Order-in Original was passed pursuant to a Show Cause Notice (SCN) imposing penalty upon the petitioner.
The said matter was in statutory appeal before the Commissioner of Customs (Appeals) against the Order-in-Original. The impugned order was set aside. In view of the order-in appeal, the Petitioner requested the release of the pending drawback and credit the same. The said letter was communicated to the Assistant Commissioner (IGST) and the same was accepted by the competent authority. Thereafter, the Petitioner requested the Office of the Deputy Commissioner of Customs (Recovery) to issue no dues Certificate. Subsequently, the Petitioner obtained certificates from the respective banker certifying the realization and upload of export proceeds but the duty drawback amount remained unpaid.
In the meantime, the Petitioner received an Order-in- Original wherein the Customs Department alleged that with respect to 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. This order was challenged before the High Court.
The Petitioner’s Counsel contended that surprisingly, though the Department had all the proper contact details of the Petitioner neither the Show Cause Notice nor the hearing notices were received. In addition, for each of the Shipping Bills, the payments had been received and the same were duly certified by the concerned Bank as well.
It was the case of the Respondents that the Show Cause Notice and the hearing notices were issued in terms of Section 153 of The Customs Act, and also pasted on the board of the Customs Department. However, none appeared for the Petitioner resulting in the Order-in-Original being passed
A specific query was also put to the Standing Counsel for Customs as to whether the Show Cause Notice and hearing notices were issued by email. It was submitted that under Section 153(b) of the Customs Act, it is to be issued through registered post or speed post and the same has been complied with. However, no email was sent to the Petitioner.
The Bench noticed that the documents which had been placed on record including the bank certificates showed that the amounts from the exports in the form of foreign exchange had 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”, the Bench said.
Referring to Section 153 of the Customs Act, the Court further held, “A perusal of the said provision would show that one of the modes for service under Section 153(b) of The Customs Act is through registered post, speed post or courier, however, it can also be sent through email in terms of Section 153(c) of The Customs Act. In addition, from 2021 onwards, notices and hearing notices can also be made available on the common portal as well.”
On a perusal of the impugned order, the Bench noted that the notice appeared to have been sent under Section 153(b) of The Customs Act and on the display board of the Customs Department.
“In the opinion of this Court, the provision itself makes it clear 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”, it said while also adding, “This entire delay and non-appearance could have been completely avoided if the notices were sent by email to the Petitioner.”
The Bench went on to specify, “The Customs Department ought to in future follow a system by which in addition to notices by speed post, registered post or courier, notices are also sent on the email address which is provided on the letterhead of the Petitioner or any authorised person. This would avoid substantial delay and matters proceeding ex-parte as has happened in the present case.”
Owing to the fact that as per the Petitioner the entire amount of the shipping bills and foreign exchange had been realized, the Bench held that the Petitioner ought to be given an opportunity to reply to the Show Cause Notice and a hearing may be afforded to the Petitioner.
Thus, setting aside the impugned order, the Bench ordered, “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.”
The High Court further directed that a copy of this order to be communicated to the Chairman, Central Board of Customs and Indirect Taxes so that the mandate of the provision of Section 153(b) and (c) for communication of notices, orders etc., by email as also uploading on the Directorate General of Foreign Trade (DGFT) common portal can henceforth be given effect to.
Cause Title:Bonanza Enterprises v. The Assistant Commissioner of Customs & Anr (Neutral Citation: 2024:DHC:9885-DB)
Appearance:
Petitioner: Advocate Prem Ranjan Kumar
Respondent: Standing Counsel for Customs Aakarsh Srivastava, Advocate Anand Pandey