ISSUING OF SHOW CAUSE NOTICE ON E-MAIL ID OF THE ASSESSEE

Issue of notice

Section 153(1) of the Customs Act, 1962 (‘Act’ for short) provides for the service of a notice, order, summon or any other communications under the Act or the rules made thereunder in any one of the following modes-

• by serving 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;
• by 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;
• 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;
• by making it available on the common portal;
• 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
• 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.

 Issue

The issue to be discussed in this article is about the position of sending notice through the email id of the recipient with reference to decided case law.

Case law

In Elena Shvedova Versus Union of India And Ors. - 2025 (5) TMI 2233 - DELHI HIGH COURT, the petitioner was intercepted by the Department officials and five gold bars were seized from her weighing 1075 grams. The gold bars were seized on 21.01.2023. The Department issued a show cause notice to the petitioner on 04.07.2023. The same was sent on the email address [email protected], as provided by the petitioner in her statement on 21.01.2023, under Section 153(1)(c) of the Act.

Against the said issue of show cause notice, the petitioner filed a writ petition before the High Court and with the prayer for release of goods seized by the Department. The High Court dismissed the writ petition on 27.08.2024. The High Court observed that there is no dispute about the email id of the petitioner and it is the correct email id of the petitioner.

The High Court also analysed the email policy of the Government. Para 2.1 of the email policy of the Government provided that only email services provided by the NIC shall be used for official communication by all organization. In this case the mail was not sent through the NIC mail id but through gmail id. The High Court further observed that the e-mail policy was issued by the Government during February, 2015. The e-mail id as a mode of delivery was inserted in Section 153 of the Act vide Finance Act, 2018.  The High Court observed that the said section 153 does not bar using email id services provided by other than government agency. The email policy has no over-riding power over the statutory law. Therefore, the service of the notice using the email service provided by other that of the Government would not render the service of notice as invalid.

The notice was sent to the email id address as provided by the petitioner in her statement dated 21.01.2023. Further the petitioner showed that she did not receive the email id by placing the screenshot of the inbox taken from her mobile phone. The High Court held that the same cannot be relied on by the petitioner since the same has not been taken out from the computer and it was only taken from the mobile phone. The screenshot taken by the petitioner from her mobile phone is not a trustworthy document and cannot be relied upon it.

The show cause notice was issued within 6 months from the date of seizure of gold bars. Therefore, the High Court dismissed the writ petition as it did not find any merit in the writ petition.

Against the above said order of High Court, the petitioner filed a review petition before the High Court.

The petitioner submitted the following before the High Court-

• The show cause notice as alleged by the Department, was sent through the E-mail id of the petitioner was not actually received by her.
• Since the notice was received the petitioner was not able to file reply to the said notice.
• The email id placed on record by the Department is not supported by a certificate under Section 65B of the Indian Evidence Act. (this section provided that email is admissible as evidence without needing the original, provided they are accompanied by a specific certificate (under Section 65B(4)) verifying the device’s reliability, proper operation, and authenticity.)
• The service of the show cause notice through email id is not in accordance with the email policy of the Government.

The High Court analysed the order of the Single Bench in detail. The High Court observed that even after the counter affidavit was filed the petitioner did not seek time to file any reply to the show cause notice and continued to challenge the service of the email itself. The High Court, therefore, considered that there is no ground for considering the review petition. Further the review petition was filed after a delay of 200 days. The reasons provided for delayed filing the review petitioner was not satisfied by the High Court. Therefore, the High Court dismissed the review petition.

Against the said order the petitioner filed the present appeal before the Supreme Court – Elena Shvedova Versus Union of India & Anr. - 2026 (2) TMI 138 - SC Order. The Supreme Court observed that it appeared the appellant is a Russian Citizen and resident of Moscow. The appellant purchased 5 gold bars weighing 1075 grams from her bank in Russia. She came to India with the said 5 gold bars for the purpose of making jewellery and to take back to her country. At the time of landing, she was intercepted by the Customs Officer near the green channel and made a search on her and recovered the gold bars from the possession of the petitioner.

The Supreme Court observed that the case of the Department is that the notice was issued to the petitioner by way of gmail n her id. This has been disputed by the petitioner. The Supreme Court further observed that the Department failed to issue show cause notice within the time frame of 6 months as prescribed under Section 110(2) of the Act. Therefore, the Supreme Court held that the adjudication should be dropped and the gold bars are to be given back to the petitioner.

The Supreme Court directed the Adjudicating Authority to conclude the proceedings within 6 months from the date of its order.