Petitioners father is a licenced gold dealer and the petitioner is conducting the business. On 10-11-1974 his shop was inspected by the Superintendent of Central Excise, Trichur and party and seized certain items of primary gold and gold ornaments and they were confiscated under the Gold Control Act,1968. Petitioners reply to the show cause was not accepted and Ext.P-1 order was passed by the first respondent confiscating the seized items of gold under S.71(1) of the with an option to the petitioner to redeem the gold ornaments on payment of fine of Rs.5,000/- within three months from the date of receipt of the order.

2. The case of the petitioner is that the third respondent did not take any steps to dispose of the appeal filed by him for about 8 years, that he was informed as per Ext. P-2 of the posting of the appeal on 26-6-1986 and that his counsel appeared before the third respondent on hearing dale and that it was submitted that the petitioner be allowed to redeem the gold ornaments on payment of fine of Rs.5,000/-. Third respondent passed Ext.P6 order rejecting the appeal and confirming Ext.P-1. Petitioner contends that he is ready to pay the fine amount of Rs.5,000/- that his counsel at the time of hearing of the appeal indicated the above desire, but the appeal was rejected and as he was not intimated about it he could not pay the same.

3. Learned counsel for the respondent admitted that registered notice was sent to the petitioner intimating him of the disposal of the appeal and he intentionally evaded the receipt of the same and therefore at this distance of time he cannot be allowed to take the stand that he is ready to redeem the gold ornaments on payment of fine. He submitted that the petitioner should have done so within three months from the date of Ext.P-6 order. Contention of the petitioner is that he did not receive the registered notice informing Ext.P6 order and so it became virtually impossible for him to pay the fine within three months of the order.

4. Ext.R-2(a) is the Photostat copy of the registered letter alleged to have been sent to the petitioner intimating him of the result of the appeal. Learned counsel for the respondents pointed out that Ext.R2(a) distinctly shows that the registered notice was sent on 16-7-1986 and the petitioner evaded its receipt. He submitted that S.153 of the Customs Act 1962 has been complied with as Ext.P6orderin original was displayed in the notice board in the Customs House and so the petitioner has to be imputed with the knowledge of it.

5. The question that arises for consideration is whether it is open to the 3rd respondent to adopt any of the modes of service of the order or decision in his own discretion. S.153 reads:

"153. Service of 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 Cl. (a), by affixing it on the notice board of the customs house."

Thus it can be seen that notice issued under S.153 can be sent by registered post either to the person for whom it is intended or to his agent and if it cannot be so served, the service may be effected by affixing on the notice board of the Customs Office. It cannot be held that it is open to the authority to take the stand that it is open to him to adopt any of the modes of service as prescribed under clause (a) or (b) of S.153 as he deems fit.S.153 does not allow respondents to contend that affixture of Ext.P-6 order in the notice board of the Customs House alone would be sufficient. Clause (b) clearly states that if the order, decision, summons or notice cannot be served in the manner provided in clause (a) it can be affixed on the notice board of the Customs House. The normal rule is to tender the order, decision, summons or notice or sending it by registered post to the person to whom it is intended or to his agent. Mode prescribed under clause (b) can be followed only when it is found that the order, decision, summons or notice could not be served in the manner provided in clause (a) viz. by tendering it or by sending it by registered post. Respondents cannot choose any of the modes at their sweet will and pleasure.

6. Ext.R-2(a) shows that the notice was registered from Madras on 16-7-1986. Admittedly, there is no mistake in the address shown on the registered letter. Postal seal on Ext.R-2(a) shows that the letter reached Kollangode post office on 19-7-1986. There is an endorsement "not known" dated 19-7-1986. Thereafter no attempt was made to serve the notice to the addressee. From Ext.R-2(a) it is not possible to hold that attempts were made to deliver the letter to the addressee (petitioner) and that he deliberately evaded receipt of the same. From Exl.R-2(a) it is not possible to hold that it is a case where Ext.P-6 order could not be served in the manner prescribed in clause (a) of S. 153. Except the solitary endorsement on 19-7-86, Ext.R-2(a) docs not reveal that any subsequent effort was made to deliver Ext.P-6 order to the petitioner. This certainly would show that i I is not a case where Ext.P-6 order could not be served on the petitioner. In that view of the ma tier contention of the respondents that publication of Ext.P6 order on the notice board of the Customs House should be considered as sufficient notice is not tenable.

7. As there was no compliance of S.153 petitioners contention that he knew of Ext.P6 order only as per Ext.P-5 communication cannot be brushed aside. Petitioners request to allow him to pay the penalty was turned down as per Ext.P-11 order on the ground that he did not pay the fine within the stipulated period. As I find that the petitioner cannot be attributed with the knowledge of Ext.P-6 order at any time prior to Ext.P5 his request to redeem the gold ornaments on payment of the fine imposed upon him has to be allowed. I do so. Respondents are directed to allow the petitioner to redeem the gold ornaments referred to in Ext.P1 order on payment of the redemption fine of Rs.5,000/-.

The Original Petition stands allowed. No costs.