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2022 (5) TMI 814 - HC - CustomsCondonation of delay in filing appeal - writ petition has been filed long after the expiry of limitation - Penalty u/s 114(i) - illegal activities with the tenants - tenant was using the property, which was rented out by the petitioner for storing turtles and tortoises. - smuggling and export of tortoises from India - levy of penalty u/s 114(i) of the Customs Act, 1962 - HELD THAT:- No doubt the petitioner has missed the statutory period of limitation prescribed under Section 128 of the Act. As per Section 128 of the Act, a statutory appeal has to be filed within a period of 60 days from the date of receipt of the order before the Appellate Commissioner. As per the proviso to Section 128(1) of the Act, a further grace period of 30 days is given to an assessee or a person aggrieved by the decision passed under the Act to file such appeal with an application to condone the delay. The power to condone the delay is now circumscribed under Section 128 of the Act. Therefore, the petitioner cannot file an appeal before the Appellate Commissioner beyond the statutory period of limitation. Even if such an appeal is filed, such appeal will be rejected - However, a reading of the impugned order and the statement of the petitioner make it clear that there is no admission of liability by the petitioner that the petitioner was conniving with the said Kishore and other exporters, who were engaged in export of turtles/tortoises contrary to the provisions of the Customs Act, 1962 and other enactments and Wildlife Protection Act, 1972 and CITES. The impugned order nowhere discloses that the petitioner was actively engaged in along with the other co-noticees to export turtles and tortoises in violation of Customs Act, 1962 and other enactments and Wildlife Protection Act, 1972 and cites. The imposition of penalty of Rs.4,50,00,000/- under Section 114(i) of the Customs Act, 1962 makes an appellate remedy illusory for a small time agriculturist, who may or may not be directly involved in the alleged smuggling of turtles and tortoises contrary to the provisions of the Customs Act, 1962, Wildlife Protection Act, 1972 and cites. Penalty under Section 114(i) of the Customs Act, 1962 will apply where a person by his act or omission renders the goods liable for confiscation under Section 113 or abets the doing or omission of such an act. Merely because the petitioner had rented out the godown to the other co-noticees, ipso facto would not mean that the petitioner was actively abetted in the commission of the Act, it would have rendered in the goods liable for confiscation. It is quite possible that the tenant was engaged in illegal activities, which would be violation of the Customs Act, 1962, Wildlife Protection Act, 1972, CITES and any other enactments. Imposition of penalty of Rs.4,50,00,000/- makes the appellate remedy illusory for a small time agriculturist, who had the misfortune of renting out the property to a person, who had actually indulged in illegal export - case remitted back to the 2nd respondent to pass fresh orders on merits and in accordance with law after ascertaining clearly as to whether the petitioner had indeed actively abetted in the commission of the offence, which attracted the provisions of the Customs Act, 1962, so as to attract penalty under Section 114(i) of the Customs Act, 1962. The writ petition stands partly allowed.
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