TMI Blog2019 (8) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days. Whether the impugned show cause notice stands issued within the period of 90 days or not? - Regulation 20 (1) of CBLR, 2013 - HELD THAT:- Any notice is set to be issued when it is put in proper form and placed in the hands of a person authorised to serve it and with the bonafide intent to have it served - In the present case, there is no dispute that the show cause notice was signed by Commissioner on 17/01/2018 i.e before the expiry of period of 90 days from the date of receipt of inquest report. No doubt, considering the above definition of word issue mere signing of notice cannot be equated with issuance of notice. As contemplated in the impugned regulation, the date relevant for issue would be the date on which the notice was handed over for service to the proper officer. The department has placed on record the copy of dispatch register maintained by the office of the Commissioner Customs in their regular course of business. Perusal thereof shows that the show cause notice of 17/01/2018 was dispatched for being put in process of post on 17/01/2018 itself. Once the notice was sent out of the office of issuing authority, it was definitely out of the control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.08.2017 was actually of 06.09.2017 (as per EDI system) and 06.09.2017 date also got confirmed from shipping line OOCL. Opining the change of date as forgery that the proprietor of the Appellant CB, namely, Shri Yogesh Kumar Pandey was interrogated where he acknowledged the aforesaid change about the date of Bill of lading to have been done with the intention to avoid requirement of BIC certificate made applicable from 01.09.2017 by of DGFT notification no. 26/2017 dated 1st September, 2017. Statement of an employee of Appellant, namely, Shri Praveen Kumar was also got recorded on 17.10.2017 itself acknowledging the aforesaid intention. It is thereafter that the incident report of Deputy Commissioner SIIB Import, ICD, Tughlakabad, New Delhi was forwarded alleging the noticed forgery in the Bill of lading and proposing an action under Regulation 18 read with Regulation 20 and 22 of the CBLR, 2013, including revocation of licence, forfeiture, security and imposition of penalty. The licence of the Appellant was suspended by the Commissioner of Customs (General), New Custom House, New Delhi vide Order no. 67 dated 27/10/201 / 30/10/2017, in view of Regulation 19(1) of CBLR, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was dispatched on 17/01/2018 itself. 7. It is also impressed upon that the word Issue used in Regulation 21 of CBLR, 2013 does not mean served . Justifying upon the order, learned Departmental Representative has prayed for the dismissal of the appeal. 8. After hearing both the Parties, we observe as follows : The only line of argument on behalf of Appellant to set aside the impugned order is the ground of limitation that the impugned show cause notice is not issued by Commissioner of Customs within 90 days of the date of the receipt offence report as it was put in post after the expiry of 90 days irrespective it was signed by the issuing authorities during the period of limitation itself. 9. In view thereof, we confined our findings to the issue of limitation. For the purpose Regulation 20 (1) CBLR 2013 is perused. It reads as follows : 20. Procedure for revoking licence or imposing penalty: (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime it becomes a perfected process. 13. In the case of Kanubhai M Patel HUF vs Hiren Bhatt OR His Successors to Office 4 in SCA Nos. 5295 to 5297, decided on 13.07.2010, the word shall be issued as used in Section 149 of the Income Tax Act were defined as follows: Any process may be considered issued if made out and placed in the hands of a person authorised to serve it, and with a bona fide intent to have it served. 16. Thus, the expression to issue in the context of issuance of notices, writs and process, has been attributed the meaning, to send out; to place in the hands of the proper officer for service. The expression shall be issued as used in section 149 would therefore have to be read in the aforesaid context. In the present case, the impugned notices have been signed on 31.03. 2010 whereas the same were sent to the speed post centre for booking only on 07.04.2010. Considering the definition of the word issue, it is apparent that merely signing the notices cannot be equated with issuance of notice as contemplated under section 149 of the Act. The date of issue would be the date on which the same were handed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner is held to be the date of issue of notice. The said date, therefore, is 17/01/2018. Since the same is within the period of 90 days of receipt of inquest report by the Commissioner, the impugned show cause notice cannot be held to be barred by limitations. 20. The fact that date of service of the show cause notice upon the Appellant that is 07/02/2018 is absolutely not relevant for the impugned controversy, as the same is confined to issuance of notice. Event of issuance has to precede the event of service of notice. Hence the service of notice cannot be covered under the word shall issue . 21. In view of the entire above discussion, we are not convinced with the arguments put forth on behalf of Appellant about the impugned show cause notice to have been barred by in time. 22. We draw our support from the decision of Hon'ble High court of Gujarat at Ahmedabad in the case of Kanubhai M. Patel HUF (Supra) wherein issuance of notice is though held to be different from signing of notice but has no-where been equated to the service there. 23. As a result of entire above discussion, we don't find any infir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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