The Customs, Excises, and Service Taxes Appellate Tribunal (CESTAT), Delhi Bench held that the Show Cause Notice was not validly served which is a condition precedent for giving jurisdiction to the Adjudicating Authority to pass an order.
The appellant, Baldeep Singh is neither an importer nor engaged in the business of import and export. Further, he does not have any Import Export Code (IEC).
The Revenue seized post parcels were imported from China not bearing the name of the consignor, at foreign post office, New Delhi. The parcels were examined by the officers of DRI under panchnama. The goods were declared as CD.
As the goods were liable for confiscation, the same were seized. Summons were issued in the name of the appellant. Thereafter, nobody appears before the DRI. An officer personally visited the premises but the person, Shri Baljeet Singh was not found. Thereafter, without ascertaining or identifying the main person, Shri Baljeet Singh, show cause notice was issued by speed post and also marked to notice board of DRI.
During the course of hearing, the Tribunal noticed that there appears to be no proper service of show cause notice, and accordingly by Miscellaneous Order directed the Authorised Representatives to file a copy of show cause notice as well as proof of service of show cause notice, in view of the fact that the appellant have denied the service of show cause notice. In reply thereto, the Authorised Representative have only furnished the number of speed post and date of despatch, but have failed to submit the proof of delivery. He also filed the copy of show cause notice and the copy of notice of personal hearing issued but there is no proof of service.
The Authorised Representative for the Revenue submitted the copy of report from the foreign post office wherein he stated that there is no record of regular imports by this appellant and a similar report has been received from the Deputy Commissioner (EDI), ACC Export. The assessee further submitted that the address given by the appellant in the memo of appeal is the same on which the show cause notice etc. was issued through speed post, and accordingly states that there is sufficient service of show cause notice.
The Counsel for the appellant reiterated his submission and stated that Revenue have resorted to colourable exercise of power, as it has passed the ex-parte order-in-original without ensuring service of show cause notice. In spite of there being no change of address of the appellant, which has been all throughout for the last several years till today. Even as per the statement of Revenue they could locate the appellant even on personal visit to the said premises. Further, without identifying and ascertaining the service of notice, by putting on the notice board is colourable exercise of powers, having no legal sanctity. Accordingly, he prayed for allowing the appeal with consequential benefits.
The coram of Anil Choudhary found that the Adjudicating Authority have not recorded satisfaction of service of show cause notice and have proceeded to pass the ex-parte order-in- original, which is held to be a nullity in the eyes of law. Substituted service by way of affixation on the notice board of the Department is by way of last resort.
The tribunal held that there is no valid service of show cause notice. Thus, the order-in-original is held without authority of law. Therefore, the impugned order is set aside and appeal is allowed with consequential benefits, in accordance with law.
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