TMI Blog2017 (3) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... n effected under Section 153(a) of the Customs Act, 1962. As stated in para 7 (supra) the records of service by affixing the notice on the notice board of the customs house would arise only in the event that the notice “cannot be served in the manner prescribed under the said clause” as laid down under Section 153 (a) - Therefore, in terms of the unambiguous language of Section 110(2), in the absence of notice within six months of the seizure of the goods, they would have to be released back to the petitioner - petition allowed - decided in favor of petitioner. - W.P.(C) 3148/2016 - - - Dated:- 15-3-2017 - MR. S. RAVINDRA BHAT MR. NAJMI WAZIRI JJ. Petitioner Through: Ms. Sangita Bhayana, Advocate. Respondents Through: Mr. Satish Aggarwala and Mr. Amish Aggarwala, Advocates for Respondents No. 1 and 2. Ms. Kavita proxy for Mr.Pramod Bahuguna, Advocate for Respondents No. 3 and 4. NAJMI WAZIRI, J.:- 1. By this petition under Article 226 of the Constitution of India, the petitioner has impugned the order dated 14.08.2015, whereby the gold brought into India by him was seized by the customs authorities. It is the petitioner s case that after having wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted in the body of the suitcase, which is an unusual way of carrying gold. This was an indicative of the petitioner s mens rea to smuggle the gold. 3. Before dwelling into the merits of the contentions made by the parties, it would be appropriate to examine the relevant legal framework concerning the proceedings. 4. Section 110(2) of the Act reads as under:- 110. Seizure of Goods, Documents and Things. (1) ................. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Principal Commissioner of Customs or Commissioner of Customs for a period not exceeding six months. 5. Section 124 of the Act deals with issuance of show cause notice before confiscation of goods, which reads as under:- .....124. ISSUE OF SHOW CAUSE NOTICE BEFORE CONFISCATION OF GOODS, ETC. No order confiscating any goods or imposing any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice bearing number 1228-C is mentioned as 1227-C in the despatch register. In any case, this entry is not sufficient proof or notice in terms of the requirement of Section 153 of the Act. Therefore, the same cannot be accepted as proof of service of notice within six months of seizure of the goods as mandated under the Act. Consequently, the petitioner would be entitled to return of the goods from the Customs Authorities. 9. The petitioner has relied upon the judicial decisions of this Court in precedents, namely, Auto Creaters Vs. Union of India, 2015 (325) E.L.T 49 (Del.) and Purushottam Jajodia Amit Kumar Vs. Directorate of Revenue Intelligence Anr. And K.M. Udyog Vs. Deputy Commissioner (Anti Evasion) Central Excise Anr., 215 (2014) DLT 78. The former judgment held that if no notice was issued within six months time, as mandated under Section 110(2) of the Act, the goods would have to be released back to the party from whom the goods were seized. The latter judgment held that notice would be regarded as having been served when it is actually received or deemed to have been received by the person from whom the goods were seized. The object is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessment and submitted an objection clearly stating that notice under section 143(2) of the Act of 1961 was not served upon the assessee. The provision clearly says that upon furnishing such objection by the assessee, deeming clause will not come into operation so as to declare the service to be valid. ... 16 ... 28. In the case before us, the assessee has led no evidence to prove that the impugned notice was not received by him or that he was not responsible for its non-service. The details given by the AO in the assessment order included not only the receipt no. under which speed post was sent but also the tracking code. Perusal of the assessment order shows that the AO had apprised the assessee of the aforesaid facts in the course of assessment proceedings also. It was therefore for the assessee to adduce relevant evidence to prove that the said notice was not served upon him and also that he was not responsible for its non-service. However, the assessee has not adduced any evidence to prove so in spite of the fact that he could have done so with the help of details made available in the assessment order and also in the notice issued to him in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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