AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 704
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....s authorities. It is the petitioner's case that after having worked for a few years in the UAE, on his way homewards he purchased from his earnings, gold weighing 580.67 grams for the purpose of his son's marriage. On his arrival at the Delhi Airport, while he was still waiting to receive his luggage from the conveyor belt, and even before he could take the same for declaration to the Customs Authorities at the Red Channel counter, he was questioned by the Customs Authorities. The gold which was kept in his suitcase was seized and a Panchnama was prepared confirming the quantum of gold. The difference between the versions of the petitioner and the respondent/Customs Authorities is that, while the former claims that he had not even received ....
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.... is further contended that the gold was imported with mala fide intention of smuggling it into India, particularly since 21 pieces of the gold were coated in a white substance and the other four cut pieces were fitted 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 g....
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....of the Act, which reads as under:- "153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by the Commissioner of Customs; (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house." 7. Section 153 was amended with effect from 28.05.2012 to make it mandatory for service of notice by "registered post or by such courier as may be approved by the Commissioner of Customs" i.e. notice shall be served by the registered post to the ....
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....., 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 to inform the person concerned of the proposed confiscation or imposition of penalty and to provide them with an opportunity to make representations in writing. Insofar as the respondents have not been able to prove that the notice was either posted or served, there can be no presumption in that regard. Consequently, ....
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....er this Act that the notice was not served upon him or not served upon him in time or it was served upon him in an improper manner. According to the learned counsel for the assessee, the Revenue cannot take help of this provision in view of the fact that, in the same section it has been provided that such deeming provision will not apply, if the assessee raised the objection of service before making amendment order by the Assessing Officer. Here in this case, the appellant-assessee came to know about the proceedings taken by the Assessing Officer before completion of 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 ....
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....h we have quoted above." 11. However, the aforesaid judgment is not applicable to the facts of the present case because it held that once the authorities have produced proof regarding service of notice then it becomes incumbent upon the assessee to prove that the said notice was not served upon it. In the present case, not only have the custom authorities failed to provide proof regarding service of notice, but also their counter affidavit is unsupported by any material proof of service. In the aforementioned case, notice was deemed to have been served in the event that the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or re-assessment and "in that situation, the assessee shall be preclude....