D.K. Seth, J.
1.A very interesting but short question has been raised by Mr. Pranab Kumar Dutta, learned counsel, appearing for the appellant. Some goods were seized from the petitioner/appellant on 27th Feb., 2001. A notice under Section 124(a) of the Customs Act, 1962, was issued to the petitioner/appellant herein on 21st of Aug., 2001, by speed post. This notice was returned with the postal remark that the petitioner was out of town and despite several attempts, the notice could not be served. Six months expired on 27th Aug., 2001. Subsequently, in the proceedings, the representative of the petitioner appeared and had accepted the said notice on 23rd Sept., 2002. All these facts are admitted.
2. On this background, Mr. Dutta has contended that by reason of Sub-section (2) of Section 110 of the Customs Act, the petitioner became entitled to return of the seized goods and the customs authorities became liable to return the seized goods to the person from whom it was seized. The notice having not been served in terms of Section 153 of the Customs Act, the condition contemplated in Sub-section (2) of Section 110 was not satisfied. As such, the petitioner was entitled to return of the goods. Section 124 relates to the confiscation of the seized goods and imposition of penalty, whereas Section 153 deals with service of notice, etc. issued under the Act. A notice under Section 124 is definitely a notice, which is required to be served in the manner provided in Section 153. Section 110(2), Section 124 and Section 153 are to be read together and be given a reconciled meaning. He has sought to interpret the word "given" used in Section 110(2) and Section 124(a) taking aid of the dictionary meaning. He has relied on Webster's Third New International Edition, p. 959, and the Shorter Oxford English Dictionary at p. 795. Third Edition. He has also relied on Webster's Seventh New Collegiate Dictionary Indian Edition, 2nd Reprint, p. 353. He has cited a decision of the Supreme Court in order to show that the dictionary meaning can be relied upon. He has also relied on a decision of the learned Single Judge of this Court where the learned Single Judge had accepted the proposition that in order to interpret the meaning of a particular word, the dictionary can be relied upon. He has also relied upon various decisions of the High Courts and the apex Court where the word "give" has been interpreted to mean "serve". Some of these also relate to Section 110(2) r/w Section 124(a). It also relates to some provisions of the Gold Control Act and the IT Act containing identical provisions, Therefore, according to him, since no notice was given under Section 124(a) within the meaning of Section 110(2) in the manner provided in Section 153, the petitioner was entitled to return of the seized goods and the customs authorities were liable to return the same.
3. On behalf of the respondent-Revenue Mr. Biswanath Samaddar, learned counsel, and Mr. Shibdas Banerjee, learned senior counsel appearing with him, on the other hand, has contended that Section 124(a) and Section 110(2) of the Customs Act has used the expression "given", whereas Section 153 deals with service. There is a distinction between "giving of notice" and "service of notice". After a notice is given, the same is served. Sections 110(2) and 124(a) speak of giving of notice not of service. Then again Section 110(2) does not contemplate any penal consequence on the petitioner. Therefore, the expression "giving" is to be interpreted in the context in which it has been used and not in the strict sense of Section 153 and Section 28. Even Section 153 provides for two alternative mode of service in Clause (a) and Clause (b) Clause (b) can be resorted to only when notice cannot be served under Clause (a). Therefore, as soon the notice was issued within six months, the mischief of Section 110(2) was avoided by the customs authority. With these contentions, the decision of the learned Single Judge was sought to be supported on behalf of the Revenue.
4. The petitioner-appellant had filed writ petition No. 16612(W) of 2002 seeking return the seized goods. This writ petition was dismissed by the learned Single Judge by a judgment and order dt. 12th March, 2003. Against this order, the present appeal MAT No. 710 of 2003, has since been filed and in connection therewith CAN 2690 of 2003, for interim order has been filed.
5. This matter had appeared in the list as an application. The learned counsel for the respective parties had addressed the Court on merit of the case. Here it is a pure question of law. Therefore, by consent of parties, this appeal is taken up for hearing treating the same as on day's list for hearing.
6. After having heard the learned counsel for the parties, we are of the view that Section 110(2) does not impose any penal consequence. Therefore, it cannot be read in the same manner in which notices are issued for imposing penal consequence. In any event, Section 2 and Section 153 used the expression "serve" and deal with service. Whereas the legislature used the expression "given" in Sections 110(2) and 124(a). The use of different expression must be intended to connote different intentions of the legislature. The interpretation is to be made on the basis of the simple English meaning having regard to the common understanding of the expression used. But, at the same time, having regard to the scheme of the Act, this is to be interpreted in the context of Section 153.
7. In the dictionary as cited by Mr. Dutta, the word "give" has been given the following meaning : (1) Webster's Third New International Dictionary at p. 959 "Give". "To put into the possession of another for his use". (2) Webster's Seventh New Collegiate Dictionary, Indian Edition, Second Reprint, p. 353 "Give" "To put into the possession of another for his use". (3) Shorter Oxford English Dictionary, Third Edition, p. 795 "Give". "To hand over as a present". (4) Chambers Compact English Dictionary at p. 262 "Give" "To hand over".
8. This Court in a decision by a learned Single Judge, in Terai Overseas Ltd. & Am. v. Commr. of Customs, Customs House & Ors. 2001 (3) CHN 352 had held that Courts are entitled to take recourse to ordinary dictionary meaning in the matter of classification, if a particular word is not defined in the relevant statute. The learned Single Judge relied on Karnani Properties Ltd. v. Augustin & Am. , Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd. & Am. , CWT v. Officer-in-charge, Paigah, 1976 (3) SSC 846
9. This proposition is not in dispute. The dictionary meaning can be resorted to if the word is not defined. But here it is not a question of definition of the word. Here we are concerned with the fact as to how the word "given" is to be understod in the context of a particular situation. A particular expression may have different connotation in different context. When it relates to a penal consequences. It might have stricter connotation than when it is used for a purpose, which does not imply any penal consequence.
10. The most interesting part of the contention of Mr. Dutta lies with the interpretation of the word "given" used in Section 110(2). The reference to the dictionary meaning and the decisions cited by him, with which we will deal at a later point of time, has to be understood in the context in which it has been used. It has to be understood having regard to the relevance of the expression introduced. It has to be understood having regard to the purpose for which it has been so used. In order to appreciate the situation, it would be necessary to refer to the relevant provisions of the enactment. We may beneficially quote the relevant sections or its portions as hereafter :
"110(2). Where any goods are seized under Sub-section (1) and no notice in respect thereof is given under Clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized :
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months.
124. No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b)***
153. Service or 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 to the person for whom it is intended or to his agent; or
(b) If the order, decision summons or notice cannot be served in the manner provided in Clause (a), by affixing it on the notice board of the customs house."
11. A plain reading of Section 110(2) indicates that unless a notice under Section 124(a) is given within six months, if not extended for a further period not exceeding six months, of the seizure of the goods under Section 110(1), the goods shall be returned to the person from whose possession they were seized. Whereas Section 124 provides that no order of confiscation of any goods or imposing of penalty on any person can be made without giving a notice in writing informing the owner or the person, from whom the goods were seized, the grounds for proposed confiscation or penalty.
12. The purpose of Section 110 is distinct from Section 124. Section 110(2) entitles the person to return of the goods seized from him after the expiry of six months or the extended period, if any, from the date of seizure. If no notice under Section 124(a) is issued within such time. This limitation is confined to the entitlement to return of the seized goods. It has nothing to do with the initiation of the proceedings for confiscation or penalty, in respect of which the period has not been limited. A proceeding for confiscation or penalty can be initiated after the expiry of the period stipulated in Section 110(2), even though notice under Section 124(a) is not given. Such proceeding can be initiated and can be proceeded with irrespective of return of the seized goods. Thus, return of the seized goods is of distinct connotation conferring an entitlement to the person for return of the goods seized from him. The expression used is clear and unambiguous and has been couched in a mandatory form. These are to be interpreted in its strict sense, as the legislature had intended through the expression used. If the contingency provided in Section 110(2) is satisfied, the seized goods may not be returned, but if it does not, then the seized goods must be returned. It is a right that accrues, by operation of law. It cannot be denied. The restoration of the seized goods is a vested civil right. Such right accrues only after expiry of six months if on notice is given. It was so held in Shantilal Mehta v. Union of India 1983 ELT 1715 (SC) at p. 1720 and Shyam Metal Industries v. Union of India 1987 (27) ELT 600 (All). at p. 602
13. The giving of notice as has been contended by Mr. Dutta and as interpreted in the various decisions cited by him, is not in conflict with each other. All these decisions in one sense or voice indicate that giving of notice means service of notice. The giving of notice does not end with issuing of the notice or with the taking a decision to give notice or on the passing on of the information of the notice to the person or acquisition of the knowledge of the notice by such person. Giving of notice includes service of notice. Unless the notice is served, it cannot be contended that the notice was given. Similar expression is used in Section 124. No order can be passed without giving a notice in writing containing the ground for confiscation or penalty proposed. The notice must be given by serving the same. There could have been a scope of taking a different view. However, we have our reservations about the existence of any such scope. By introduction of Section 153, the legislature had left no space open for assuming the existence of any such scope.
14. The manner of service has been provided in Section 153. It provides that a notice issued under the Customs Act be served under Clause (a) either (i) by tendering the notice, or (ii) by sending it through registered post to the person to whom it is intended to be issued or served. Therefore, the moment a notice is tendered to such person by reason of Clause (a) to Section 153, a legal fiction of service is created. The notice shall deem to have been served as soon it is tendered to the person concerned. But, however, there must be sufficient proof to enable the authority to come to a conclusion that the notice was tendered. The word "tendered" does not mean that the notice is to be accepted, it would still be deemed to have been served if the person refuses to accept or even if he avoids to accept, provided there are materials to prove that the notice was tendered to the person. Similarly, Section 153(a) creates a legal fiction of service as soon the notice is sent by registered post to such person. If it is correctly addressed and the postage is properly paid, the fiction is complete. Sending of the notice will complete the fiction of service. It is immaterial whether it is received by the person addressed or it is refused or avoided. The service becomes complete as soon the stage of sending by registered post is over. But, however, there must be materials to prove that it was sent by registered post, correctly addressed and postage prepaid.
15. Question may be raised as to whether sending by courier or by speed post would satisfy the test of sending by registered post. The purpose of registered post is to ensure availability of information for ascertaining the authenticity of the service. If a new system or mode of service is introduced with the process for proving service, then we cannot overlook such process and ignore the system or mode. Now it is an accepted mode of service if the notice is sent by registered post or by speed post or by courier provided there are proof to show that it was so sent. Even if the courier service may not be so much dependable to Courts, but there is nothing to prevent the Court from depending on the service through speed post. Inasmuch as, such service is made through the same process or machinery of the post and telegraph department, a department of the Government recognized by Courts and various enactments with regard to its authenticity and dependability since ages. However, Mr. Dutta in his usual fairness has not raised this question He has all along kept himself confined within the submission that the person was not found in the town by the postal authority and, therefore, there was no tender to such person nor there was any service of the notice upon such person. He has, in fact, banked upon the endorsement of the postal authority returning the envelope. In order to substantiate his contention, he has relied on Section 153(b).
16. Admittedly, the notice was not served under Section 153(b). The respondents had never claimed service by affixation in the notice board of the customs house. Clause (b) provides if the notice cannot be served in the manner provided in Clause (a), then it can be served by affixing it on the notice board of the customs house. The use of the phrase "cannot be served" is of great significance. It is only when service cannot be effected under Clause (a), Clause (b) is to be resorted to, It does not imply that failure of service under Clause (a) would invite application of Clause (b). These two Clause (a) and (b) are independent of each other. Compliance of one will be sufficient. Therefore, it is the manner in which service is effected under Clause (a) is of great relevance and importance. The methods indicated in Section 153 Clause (a) are alternative methods. Any one of which could be attempted in the first instance. The different modes of service provided therein also support the view. Failure to serve in terms of Clause (a) would attract Clause (b). The manner as discussed above in which notice is to be served under Clause (a) is either by tendering the notice or by sending it by registered post. Therefore, as soon notice is sent by registered post, Clause (b) has no manner of application. Absence of any service under Clause (b) in such a case would not be fatal. The giving of notice either under Section 110(2) or under Section 124A(a) would, therefore, mean service of notice in the manner provided in Section 153. If the notice is sent by registered post, by legal fiction, the notice is served.
17. The learned counsel for the respondents has pointed out that the petitioner had attempted to avoid the notice for which it was returned. Avoidance of notice, when sent in the manner provided in Section 153(a), also satisfies the test of Section 110(2) r/w Section 124(a). We, however, need not go into that question. The language used in Section 153 is clear. As discussed above, as soon a notice is sent by registered post, by fiction of law, it is a deemed service for the purpose of the Act as contemplated under Section 110(2) enabling the custom authorities to retain the seized goods even after expiry of six months or the period extended, if any. Section 110(2) puts a limit to the power of retention of the goods seized. Once a notice under Section 124(a) is given in the manner provided under Section 153, the right to retain the seized goods continues. Section 110 is restricted to seizure and retention, whereas Section 124 is restricted to confiscation and imposition of penalty. These are two wholly independent sections operating in two different fields.
18. Section 153 requires that notice shall be served by sending through registered post to the person for whom it is intended. This section does not require that effective service should be effected on the person receiving it. This position seems to be clear in view of Section 27 of the General Clauses Act. Where any Central Act requires any document to be served by post then unless a different intentron appears, the service shall be deemed to have been effected by properly addressing pre-paying the postage and posting by registered post, a letter containing the document and unless a contrary is proved, the service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. By reason of incorporation of Section 153, the legislature has expressed its intention clearly in conformity of Section 27 of the General Clauses Act. As discussed above, as soon the notice is sent by registered post, the notice shall be deemed to be given within the meaning of Section 110(2). In P. Bhoormal Tirupati v. Addl Collector of Customs 1974 MLJ 319 at pp. 3201, it was held that a notice sent by registered post returned with the endorsement 'left', issued admittedly within six months, was held to be giving of notice within the meaning of Section 110(2).
19. Now we may refer to the decisions cited by Mr. Dutta. He has relied on Alka Watches (P) Ltd. & Anr. v. Union of India & Ors. (1983) 14 ELT 2116 (All) and contended that the word "given" is to be interpreted to mean an effective service. If the notice could not be served since on account of person being out of town, the same is not a service for the purpose of Section 110(2). The said decision proceeded on the facts that in that case notice was not sent under registered post either to the party or to his agent and that the notice was tendered to the agent of the party as alleged in the said case was not established since nothing was served in writing. It was only a decision to serve that was taken within six months. Though notice could be given either by tendering it directly to the party or his agent or sending by registered post to the party or his agent, but on facts in the said case, it was held that no notice was given. On the other hand, the proposition propounded in the said decision helps the view we have taken and not Mr. Dutta. In C.D. Govinda Rao v. Government of India 1987 (27) ELT 209 (Ker), the Court had dealt with Gold (Control) Act, which contains similar provision that unless notice is given within six months from the date of seizure, then the seized gold becomes liable to be returned to the person from whom seized. Following the decision in K. Narasimhiah v. H.C. Singri Gowda & Ors. , it was
held that giving of notice means not only to give or take steps for giving notice, but to serve or tender in order to complete the process of giving such notice. Quoting the observation of the Supreme Court from the said decision, it had held that giving is complete only when the notice reaches the hands of the person to whom given. But this decision has not dealt with any provision akin to Section 153 of the Customs Act. Therefore, this decision does not help Mr. Dutta to the extent he wanted to rely upon. Reliance has been placed by him on Overseas Paints Linkers v. Union of India 2001 (127) ELT 42 (All). This decision has followed the decision in Alka Watches (P) Ltd. (supra).
20. He has then relied on Prem Nath Khanna v. Collector of Central Excise & Ors. 1987 (29) ELT 9 (All). This had dealt with Section 79 and 113(a) of the Central Excise Act. In Section 113(a) of that Act, it was provided that where notice cannot be served under Clause (a), Clause (b) is to be resorted to. In the said decision, it was held that it is only if the notice cannot be served under Clause (a), then only the authorities can take resort to the alternative under Clause (b). This decision seems to help our observation about the alternativity of the two clauses in Section 153 of the Customs Act.
21. In R.K. Upadhyaya v. Shnanabhai P. Patel , the
apex Court had occasion to deal with Section 147 of the IT Act. There no distinction is made between issue and service of notice. Section 149 of the IT Act prescribes that no notice under Section 148 shall be issued after the prescribed limitation expires, whereas Section 148(1) of IT Act provides for service of notice as a condition precedent for making the order of assessment. Once a notice is issued within the period of limitation, the jurisdiction becomes vested in the ITO to proceed to reassess, but reassessment shall not be made until there has been a service. The requirement of issue of notice is satisfied when a notice is actually issued. In such circumstances, the service was not the condition precedent for conferring jurisdiction on the ITO to deal with the matter, It is a condition precedent for making order of assessment. This decision does not help us in view of the distinction between the two provisions and it was not deciding the question on the principle available under Section 153.
22. In CWT v. Officer-in-charge (Court of Wards), Paigah (supra), the apex Court had held the ordinary dictionary meaning cannot be discarded simply because it is given in a dictionary. To do that would be to destroy the literal rule of interpretation. This is a rule relying upon the ordinary dictionary meaning. The question of ordinary dictionary meaning would be relevant without any expressed provision contained in the statute. Where the statute prescribes a particular mode or manner, the literal dictionary meaning will not help us. In the said decision, a provision akin to Section 153 was not under consideration, therefore, this decision also does not help us for our present purpose. In Terai Overseas Ltd. & Am. v. Commr. of Customs & Ors. 2001 (3) CHN 352, the learned Single Judge of this Court had held that for the purpose of discovering the meaning of a particular expression used in the statute, if no definition is available from the enactment, the dictionary meaning is to be relied upon. We are in agreement with this proposition. But having regard to the facts of this case as discussed above, we do not think that this decision would help Mr. Dutta.
23. Reliance has next been placed on STP Ltd. v. Collector of Central Excise 1998 (97) ELT 16 (SC). In the said decision, it was held that if there is any doubt in the construction of any provision of a taxing statute, the doubt must be resolved in favour of the assessee. It is already a settled principle of law. But such question would arise only when there is a doubt. In our mind having regard to the provision contained in Section 153, there seems to be no doubt about the construction of the respective provision. As such this proposition does not help Mr. Dutta. Mr. Dutta has then relied upon Overseas Paints Linkers v. Union of India 2001 (127) ELT 42 (All). While dealing with the Section 110(2), it was held that giving of notice means service of notice and not mere issuing of it. In the said case, the notice was issued within the time, but was served beyond the time. But here in the present case, the notice was issued but could not be served since the person was not in town. But, at the same time, the Allahabad decision was not dealing with Section 153 in the said case. Thus, this decision also does not help Mr. Dutta. In K. Narasimhiah v. H.C. Singri Gowda & Ors. , it was held that the giving of notice would
ordinarily mean service of notice. This decision was dealing with service of notice in connection with a municipal election. There seems to be no provision similar to Section 153, which was taken into consideration in the said decision, Thus, this decision also does not help Mr. Dutta to the extent he wanted to rely upon. In Payal Ashok Kumar Jindal v. Captain Ashok Kumar Jindal, , it was held that the notice came back with the endorsement that the appellant could not be found on the given address. There was no material on record to reach a conclusion that the person had refused to receive the notice. There was also nothing on record to show that the postal authorities made any effort to deliver the registered letters to any of the appellant's relation at the given address. Therefore, that Court on facts had held that the learned Court below was not justified in holding that the appellant had refused to receive the notice. The said decision is distinguishable on facts. Inasmuch as, in the present case, the postal authority had made several attempts to serve. But could not be so because of the absence of the person from the town. Therefore, this decision is also distinguishable and does not help us. Mr, Dutta has relied on the Central Appraising Manual. Second Edition, Volume V at p. 17, and referred to a circular. The circular also requires that the notice is to be sent by registered post and if the notice under registered post could not be served, then the other mode of service could be resorted to. This circular conforms to the view, with regard to the alternativity contemplated in Section 153, we have taken as here in above.
24. In the circumstances, we are unable to persuade ourselves to agree with the contention of Mr. Dutta.
25. We, therefore, dispose of the appeal treating it as on day's list. We do not find any reason to interfere with the decision of the learned Single Judge. We affirm the judgment and order appealed against in the light of the observations made hereinbefore. The appeal, therefore, fails and is hereby dismissed. Application for stay, being CAN 2690 of 2003 is also dismissed.
26. The time stipulated in the order appealed against are extended by a period of four weeks in each case from the date of receipt of the xerox plain copy of this order.
R.N. SINHA, J.
27. I agree.