2025 (5) TMI 1050 - HC - Customs

Legal Challenge: Customs Act Service Validity Questioned as Notice Board Posting Challenged and Recovery Actions Temporarily Halted

HC addressed service validity under Customs Act, 1962. Respondents affixed order on Notice Board, but petitioner challenged non-service at updated ... Challenged the impugned Communication - non furnishing of the Order-in-Original and the related Show Cause Notice - failed to file a statutory appeal - period of limitation - HELD THAT:- After giving due consideration to the contentions of the petitioner as well as the respondents, this Court is of the considered view that no prejudice would be caused to any of the parties, if a direction is issued to the respondents to furnish a copy of the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice and Corrigendum, if any, within a time frame to be fixed by this Court to enable the petitioner to file a statutory appeal under Section 128 of the Customs Act, 1962, if aggrieved by the Order-in-Original, dated 04.08.2021, which is the subject matter of the writ petition. However with regard to the plea of limitation, this Court is not expressing its opinion. It is for the Appellate Authority to decide the same on merits and in accordance with law, after giving due consideration to the documentary evidence produced by the petitioner as according to the petitioner he was not served with the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice. Thus, the impugned Communication, dated 17.01.2025 issued by the 1st respondent is hereby quashed and the 1st respondent is directed to furnish a copy of the Order-in-Original, dated 04.08.2021 bearing No.85573/2021 and the related show cause and Corrigendum, if any, within a period of one week from the date of receipt of a copy of this order. The petitioner is permitted to file a statutory appeal as against the Order-in-Original bearing No.85573/2021, dated 04.08.2021, within a period of one week thereafter. Hence, this writ petition stands disposed of. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court include:Whether the petitioner was validly served with the Order-in-Original dated 04.08.2021 and the related Show Cause Notice as required under the Customs Act, 1962;Whether the procedure followed by the respondents for service, specifically affixing the Order-in-Original on the Notice Board under Section 153(2) of the Customs Act, 1962, constitutes valid service;Whether the failure to serve the Order-in-Original and Show Cause Notice to the petitioner's updated address, despite notification of the change, affected the petitioner's statutory right to file an appeal under Section 128 of the Customs Act, 1962;The implications of non-receipt of the Order-in-Original on the limitation period for filing an appeal;Whether coercive recovery actions taken by the respondents prior to furnishing the Order-in-Original and Show Cause Notice were justified;The scope of the Court's intervention in directing the respondents to furnish the documents and the extent to which the Court should comment on the merits or limitation of the appeal.2. ISSUE-WISE DETAILED ANALYSISValidity of Service of Order-in-Original and Show Cause NoticeThe legal framework centers on the service provisions under Section 153 of the Customs Act, 1962, which permits service either by personal delivery or by affixing the order on the Notice Board if personal service is not possible. The respondents contended that the Order-in-Original was affixed on the Notice Board on 20.09.2021 for 15 days, constituting valid service under Section 153(2).The petitioner challenged this, asserting non-receipt of the Order-in-Original and Show Cause Notice, particularly emphasizing that despite updating the address on the Import/Export code website, the respondents did not serve the documents at the new address. This non-service allegedly deprived the petitioner of the opportunity to file a statutory appeal.The Court considered the procedural compliance by the respondents and the petitioner's claim of non-receipt. It noted that while affixing the order on the Notice Board is a recognized mode of service under the Customs Act, the petitioner's assertion of an updated address and non-service at that address raised a question of fairness and due process.Effect of Non-Service on Statutory Right to Appeal and LimitationThe petitioner's inability to receive the Order-in-Original and Show Cause Notice was argued to have impeded his statutory right under Section 128 of the Customs Act to file an appeal. The Court acknowledged this concern and held that furnishing the copies would enable the petitioner to exercise the appeal right.Regarding limitation, the Court refrained from expressing any opinion on whether the appeal would be barred by limitation. It clarified that the Appellate Authority is the appropriate forum to decide on the limitation issue after considering documentary evidence, including the petitioner's claim of non-service.Coercive Recovery Actions Prior to Furnishing DocumentsThe petitioner contended that coercive steps were being taken for recovery of the amount determined in the Order-in-Original despite non-service. The Court, while not explicitly ruling on the propriety of such steps, issued a directive restraining respondents from taking coercive action for one week from the date of receipt of the Order-in-Original copy by the petitioner, thereby providing a protective window for the petitioner to file an appeal.Scope of Judicial Intervention and Directions IssuedThe Court exercised its writ jurisdiction to quash the impugned order rejecting the request for certified copies. It directed the respondents to furnish the Order-in-Original, Show Cause Notice, and any Corrigendum within one week. The petitioner was permitted to file the statutory appeal within one week thereafter.The Court emphasized that it was not expressing any opinion on the merits of the appeal or on the limitation issue, leaving these to be decided by the Appellate Authority in accordance with law.3. SIGNIFICANT HOLDINGSThe Court held:'No prejudice would be caused to any of the parties, if a direction is issued to the respondents to furnish a copy of the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice and Corrigendum, if any, within a time frame to be fixed by this Court to enable the petitioner to file a statutory appeal under Section 128 of the Customs Act, 1962.''It is for the Appellate Authority to decide the same on merits and in accordance with law, after giving due consideration to the documentary evidence produced by the petitioner as according to the petitioner he was not served with the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice.''The respondents shall not take any coercive steps against the petitioner for a period of one week from the date of receipt of a copy of the Order-in-Original, dated 04.08.2021 bearing No.85573/2021.''It is made clear that this Court is not expressing any opinion on the merits of the petitioner's appeal as well as on whether the appeal is filed within time or not.'Core principles established include the recognition that valid service under the Customs Act may include affixing orders on the Notice Board but that fairness and due process require consideration of updated addresses and actual receipt to enable exercise of statutory rights. The Court underscored the importance of furnishing certified copies of orders to ensure the right to appeal is meaningful.The final determinations were:The impugned communication rejecting the request for certified copies was quashed;The respondents were directed to furnish the Order-in-Original, Show Cause Notice, and Corrigendum within one week;The petitioner was granted a further week to file a statutory appeal;Coercive recovery actions were restrained for one week post receipt of the order copy;The Court declined to comment on the merits or limitation of the appeal, leaving these to the Appellate Authority.