The Delhi High Court while refusing to release the seized gold bars held that the show cause notice (SCN) issued via e-mail service provided by a non-government agency is valid.
The bench of Justice Yashwant Varma and Justice Ravinder Dudeja has observed that the amendment in Section 153 of the Customs Act vide Finance Act, 2018 does not put any bar on using e-mail service provided by other than government agencies. The SCN was served on the e-mail address provided by the noticee herself in her statement dated 21.01.2023. The e-mail Policy has no overriding power over the statutory law. Thus, merely because the SCN was forwarded to the petitioner using the e-mail service provided by other than that of Government Agency, would not render the service of SCN as invalid.
The petitioner is a foreign national and a resident of Moscow, Russia. As per averments in the petition, petitioner purchased five gold bars, weighing 1075 grams from her bank in Russia.
Petitioner came to India and brought the five gold bars for making jewellery and taking back to her country.
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Petitioner was intercepted by the Customs Officers near the green channel . The gold bars were seized by the Customs Officers. Petitioner was forced to sign pre-narrated documents, which were in English language. Petitioner later returned to her country and sent a letter dated 07.02.2023 to the Commissioner of Customs stating the ordeal she had undergone. She sent yet another letter to the Commissioner of Customs wherein she requested not to sell her gold.
It has been stated that no Show Cause Notice [“SCN”] has been given to the petitioner till date under Section 124 (a) read with Section 110 of the Customs Act, the said gold should therefore be returned to her unconditionally.
The department stated that the SCN dated 03.07.2023 was issued by the Competent Authority within the stipulated time period and the same was also sent to the petitioner by email dated 04.07.2023 but petitioner did not file any reply to the same.
The petitioner contended that no SCN as per Section 153 of the Customs Act, 1962 was served upon the petitioner. The mode of service of the alleged notice to the petitioner was by way of speed post through Ministry of Law & Justice but without providing the complete address of the petitioner to be served and this fact has been concealed by the department, inasmuch as, the SCN sent to Ministry of Law & Justice was returned back to the Assistant Commissioner of Customs on 10.08.2023 for not providing the complete and correct address of the party to be served upon.
The petitioner argued that she did not receive any email forwarding the SCN from the email address “Pre.ShiftC@gmail.com” as stated in the counter affidavit and the inbox of the email of the petitioner also does not reflect any such mail having been received from department. Even otherwise, the email sent is not valid as per Para 2.1 of the E-mail Policy of India, passed by the Ministry of Communications & Information Technology.
The department argued that the SCN has been duly served to the petitioner through e-mail. The e-mail has not bounced back, therefore, there is a presumption of due service of notice upon the petitioner.
Section 110(2) of the Customs Act, a notice under Clause (a) of Section 124 has to be issued to the owner of the goods or other person concerned within six months of the seizure of the goods, failing which, such goods shall be returned to the person from whose possession they were seized. Section 153 of the Act prescribes the modes of service of such notice. The methods indicated in Section 153(1) are alternative methods, anyone of which could be attracted in the first instance.
The court has noted that petitioner made a failed attempt to show that she did not receive any email dated 04.07.2023, by placing on record the screen-shot of the inbox taken from the mobile phone. However, the same cannot be relied on for the reason that as per certificate under Section 65-B of the Evidence Act filed by the petitioner, such digital record was taken out from the computer and not from the mobile phone. The screen-shot of the inbox produced by the petitioner is therefore not a trustworthy document and cannot be relied upon.
The court noted that the gold bars were seized on 21.01.2023, while the SCN was served through e-mail to the petitioner on 04.07.2023. The SCN was served within a period of six months, as provided under Section 110 (2) of the Customs Act, 1962, and therefore, petitioner is not entitled to the release of gold bars.
Case Title: Elena Shvedova Versus UOI
Citation: W.P.(C) 10971/2023
Decision date: 27/08/2024
