Union of India (UOI) vs Pawan Kumar Didwanian

C.J.

This appeal has preferred by the Union of India against the judgment of a learned Single Judge, the relevant portion of which is extracted below: Until the disposal of the writ the impugned order of the Collector of Customs dated 30.1.95 (pages 19 to 32 of the writ petition) shall be stayed in its operation and in all its other effect in so far as the writ Petitioner Pawan Kumar Didwania is concerned. Until the disposal of the writ the said order shall be treated to be non est as against Pawan Kumar Didwania, the writ Petitioner.

Another appeal has been tiled relating to this very matter filed by Anil Kumar Didwania (Anil Kumar Didwania v. Collector of Customs and Ors.) in which also show-cause notice had been issued by the Collector of Customs to the following effect:

In view of the above M/s. Asia Mercantile Corporation of 202, Kundan Bhavan, Azadpur Commercial Complex, Delhi-52, Shri Anil Kumar Didwania, Vinod Kr. Didwania and Pawan Kumar Didwania are hereby called upon to explain the matter in writing and to show cause�

(i) Why the differential duty of Rs. 1,53,09,118 should not be recovered from them, u/s 28 of the Customs Act, 1962,

(ii) why appropriate fine in lieu of confiscation should not be recovered from them u/s 125 of the Customs Act, 1962,

(iii) why penal-action should not be taken against them u/s 112(a) of the Customs Act, 1962.

In reply to the, show cause notice issued to Pawan Kumar Didwania on the same ground as of Anil Kumar Didwania, he alleged that the proceedings taken against him were mala fide and in breach of the principles of natural justice. We have disallowed that appeal by a different judgment given today. Appeal had been preferred by Anil Kumar. Didwania on the ground that the objections had no substance at all.

We have already quoted the operative portions of the order under challenge. Anil Kumar Didwania, Pawan Kumar Didwania and Vinod Kumar Didwania were alleged to be jointly responsible for evasion of Customs Duty. Two writ petitions filed against the two show cause notices were heard by the same learned Judge. The learned Single Judge dismissed the writ petition of Anil Kumar Didwania on the ground that Anil Kumar Didwania had alternative remedy by way of appeal before the appellate authority under the Customs Act. The learned Judge has entertained the writ petition filed by Pawan Kumar Didwania and granted the aforesaid interim order. Feeling aggrieved by the grant of interim! order Union of India and its; Officers have preferred this appeal before us.

We have heard the learned Counsel appearing for the Union of India and Mr. Mallick appearing on behalf of the writ Petitioner Respondent. After considering the submissions made on their behalf and in consideration of the materials on record we are of the view that in the facts and circumstances of this case, the learned Judge was not correct in granting the interim order which is under challenge in this appeal.

One of the grounds on which*the interim order was granted was that the learned Judge was of the view that in the facts and circumstances of this case the service of notice u/s 153(b) of the Customs Act was irregular since the notice could not be tendered by Registered Post. In our view, Section 153(b) permitted the alternative course to be adopted for service. The cover containing the show-cause notice sent to Pawan Kumar Didwania had not been returned. Therefore, another reminder from file No. S2/25/94 SIB dated September 16, 1994 was issued to Pawan Kumar D''clwania. The said reminder was returned by the Postal Authorities with the remark ''Refused'' on October 5, 1994. In these circumstances, the show-cause notice dated May 17, 1994 was displayed in the Notice Board in accordance with the provisions of Section 153(b) of the Customs Act, 1962.

The Counsel for the Customs'' Department was also right, in our view, that there was no question of grant of interim order as it was done at the very initial stage without giving opportunity of filing affidavit to the Appellants.

Accordingly, we are of the view that in the facts and circumstances of this case, there, was no occasion '' for the learned trial Judge to grant an interim order without having been satisfied that no service of notice has been effected u/s 153(b) of the Customs Act. The impugned order is, therefore, set aside.

The appeal is allowed to the extent indicated above. It will now be open to the learned Single Judge to dispose of the writ petition on merits and in accordance with law.

Tarun Chatterjee, J.

I agree.