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2023 (1) TMI 696 - HC - CustomsDismissal of appeal - alleged defect, for non-compliance of mandatory pre-deposit in terms of Section 129E of the Customs Act - seeking grant of leave to maintain the appeals against the order of CESTAT and allow the same by quashing of the show cause notices - Levy of penalty under Section 114 of the Customs Act - HELD THAT:- As the appellants herein have failed to fulfill the pre-condition of 7.5% of the demanded duty/penalty as per the order of the Commissioner of Customs, NOIDA dated 18.10.2018, this had to necessarily result in dismissal of their appeals by the CESTAT. There was no discretion with the tribunal to condone the pre-condition of mandatory deposits on the ground of undue hardship. As far as lack of jurisdiction to issue show cause notice is concerned, the said issue could have been considered once the appellants were able to maintain their appeals by making mandatory pre-deposits before the CESTAT. The appeals before us challenging the orders of the CESTAT dated 29.8.2009 in dismissing three appeals as not maintainable on account of defect of mandatory pre-deposit under Section 129E, therefore, deserve dismissal. Jurisdiction - whether any substantial question of law arises for determination in the instant appeal? - HELD THAT:- In view of the admitted fact that the confiscated gold jewellery from the factory and residential premises of M/s Ajit Exports and factory premises of M/s Vee Ess Jewellers two SEZ units were exported by M/s Deepu Jewellers and M/s Samrah Gold Factory, the Managing Director and the Director of whom was Sri Kishore Ratilal Dhakan at the relevant point of time, we are required to examine as to whether the penalty imposed upon the appellants herein under Sections 112, 114, 114AA is without jurisdiction - A conjoint reading of Sections 112 and 114 of the Customs Act which deal with penalty for ''improper import' and ''improper export' or attempt to export goods improperly clearly shows that the penalty can be imposed on "any person", not only such person who does or omits to do any act in relation to any goods liable to confiscation under Section 111 or 113, but would also include such person who abets the doing or omission of such an act. The penalty, thus, can be imposed under Section 112 or Section 114 upon not only the importer or exporter; respectively, but also upon ''any person' who commits an act of abetment, i.e. to help or aid exporters or importer in such wrong doing. In the instant case, the appellants companies incorporated in Sharjah and Dubai which were limited liability companies, 49% of share of which were held by Indian Nationals namely its Managing Director/Director Sri Kishore Ratilal Dhakan and Deepak Ratilal Dhakan were doing illegal business in India through two SEZ units namely M/s Ajit Exports and M/s Vee Ess Jewellers. Sri Kishore Ratilal Dhakan was also the share holder of M/s Vee Ess Jewellers. The permission to import gold jewellery without Customs duty and Cess was with the specific condition that the old/outdated gold jewellery imported to carry out process of assembling, refinishing, plating and remaking would be sent back to the exporters the appellants herein - the offence of improper importation and attempt to improper export by diversion of gold jewellery in the local market under mis-declaration from SEZ units had been committed within the territorial limits of India as defined in Section 2(27) of the Customs Act, 1962, the issue of jurisdiction of the Customs Authorities in India to impose penalty upon the Appellants does not arise. The appellants herein have submitted themselves to the jurisdiction of the Customs Act upon the notices issued to them under Section 108 of the said Act and filed appeals against the order of the adjudicating authority under Section 129A(a) of the Customs Act, 1962, without complying with the mandatory condition of pre-deposit under Section 129E(ii) of the Customs Act, 1962, the appeals filed by them have been rightly dismissed as non-maintainable for non-fulfillment of mandatory condition of pre-deposit. No infirmity could be found in the decisions of the Appellate Tribunal in dismissing the appeals as not maintainable - Appeal dismissed.
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