Order Date – 07 February 2023

Parties: M/s Sun Aviation Pvt Ltd Vs Commissioner of Customs (Export)

Facts –

• The Petitioner, M/s Sun Aviation Pvt. Ltd, is an International Air Transport Association (IATA) Agent, receives bookings for air freight from clearing agents (CHAs), sub-agents, importers/exporters and brokers.
• Without issuing show cause notice and sufficient opportunity to contest the allegations against it, the petitioner has been penalized in respect of consignments exported by M/s Manisha Enterprises alleging that on an examination, it was found that the exporter was non-existent and the exports under the said Shipping Bills, were to fraudulently avail export benefits.

Issue –

• Whether the impugned order has been passed with issue of proper show cause notice?

Order –

• The Divisional bench of Hon’ble High Court observed that the petitioner has affirmed on affidavit that it did not receive the Show Cause Notice. The petitioner had informed the respondent prior to the date of personal hearing regarding non-receipt of the Show Cause Notice and had repeatedly requested for a copy of the same. No response was given by the Respondent to the said notices/request.
• Since there is no material to indicate that the Show Cause Notice was sent by speed post with acknowledgement due or had been served by any of the modes as specified under Section 153(1) of the Customs Act, held that it was not served with the Show Cause Notice in question.
• The impugned order has been passed in violation of principles of natural justice and the petitioner was not afforded full opportunity to contest the allegations against it. It is clarified that the respondent is not precluded from issuing a Show Cause Notice afresh and passing an appropriate order after affording the petitioner sufficient opportunity to be heard.