2019 (1) TMI 9 - HC - Customs

Court upholds detention notice validity despite lack of service, emphasizing importance of proper notice.

The court dismissed the writ petition challenging a detention notice for failure to serve the Order-in-Original before detention. The petitioner's ... Service of orders and notices by registered/speed post and deemed service - principles of natural justice in service of adjudicatory orders - detention and sale of goods to recover customs dues - deemed service under Section 153 of the Customs Act and General Clauses Act - maintainability of writ challenging detention notice without challenging underlying adjudicationService of orders and notices by registered/speed post and deemed service - principles of natural justice in service of adjudicatory orders - deemed service under Section 153 of the Customs Act and General Clauses Act - Validity of the detention notice impugned on the ground that the Order in Original dated 27.03.2008 was not served before issuance of the detention notice - HELD THAT: - The Court found that the Original in Order dated 27.03.2008 had been communicated by speed post and the consignment was returned with an endorsement 'left'. Relying on the statutory scheme permitting service by registered/speed post and the ordinary presumption of delivery (as elucidated in the authorities relied upon by the respondents), the Court held that effective service is effected by properly addressing, prepaying and posting by registered/speed post and that non receipt by the addressee does not automatically vitiate service unless the contrary is proved. The petitioner did not show any bona fide reason for refusal of receipt or any evidence to rebut the presumption of service; nor did the petitioner avail personal hearings for which notices were given. On these facts the Court concluded there was no breach of natural justice warranting quashing of the detention notice. [Paras 4, 6, 9, 10]The contention that there was no proper service of the Order in Original before issuing the detention notice is rejected and the detention notice is not quashed on that ground.Detention and sale of goods to recover customs dues - maintainability of writ challenging detention notice without challenging underlying adjudication - Whether the writ petition challenging only the detention notice is maintainable when the Order in Original confirming the dues was not challenged - HELD THAT: - The Court observed that the Order in Original fixed the liability and directed recovery of outstanding fine and penalty; the detention notice issued thereafter was a step to recover those confirmed dues. The petitioner had not challenged the underlying Order in Original but sought relief only against the consequential detention notice. In view of the factual finding that the adjudicatory order had been validly made and communicated (subject to the presumption of postal service), the Court held that a writ attacking only the detention notice, without attacking the parent adjudication, was not entitled to succeed. The Court also noted that the petitioner had not exploited available appellate/contesting remedies against the Order in Original. [Paras 6, 10]Writ petition challenging the detention notice without challenging the Order in Original is not maintainable and does not warrant interference.Final Conclusion: The writ petition is dismissed for failure to demonstrate invalid service or breach of natural justice and because the petitioner did not challenge the underlying Order in Original; no interference is warranted with the detention notice. No costs. Issues:Challenge to detention notice based on failure to serve Order-in-Original before detention.Analysis:The petitioner imported photocopiers and faced penalties under the Customs Act. The detention notice was issued without serving the Order-in-Original, leading to a challenge based on violation of natural justice. The respondent argued that the penalties were justified, and the petitioner failed to appear for hearings. The respondent relied on legal precedents regarding service of notices via registered post. The petitioner contended that the Order-in-Original was not served before the detention notice, but the respondent claimed to have informed the petitioner about the order. The court found no merit in the petitioner's argument, stating that the detention notice was valid under the law. The court dismissed the writ petition, upholding the detention notice and emphasizing the importance of proper service of notices in legal proceedings.