TMI Blog2017 (6) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... ities to devote the same to important issues. Considering these hard realties and to have a expeditious disposal of the statutory appeals which undoubtedly is a necessary requirement of effective trade, commerce and business, the Parliament in its wisdom amended the provisions of Section 129E of providing deposit of 7.5% and 10% respectively as subclauses (i), (ii) and (iii) respectively provide. If such is the aim and insight behind the provision, it certainly cannot be held to be unreasonable, onerous, unfair or discriminatory for two fold reasons. Firstly, the object of a public policy sought to be achieved by the amendment, namely speedy disposal of the appeals before the appellate authorities is a laudable object and cannot be overlooked, so as to label the provision as unreasonable and onerous and violative of Article 14 of the Constitution. Secondly that the amount which is required to be deposited is not unreasonable from what the earlier (pre amended) regime provided. The Court considering the provisions of law and considering the decision of the Madras High Court in “M/s.Dream Castle Vs. Union of India & Ors.” [2016 (5) TMI 672 - MADRAS HIGH COURT] held that Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual value invoices recovered during search. The statements of both the partners of the firm were recorded under Section 108 of the Customs Act who admitted recovery of parallel invoices for the same goods exported by them. The partners also conceded that the invoices of higher value were submitted to the Customs at the time of export to avail higher duty drawback and the actual invoice is the one with the lesser value. Accordingly, a show cause notice dated 24 August 2015 was issued to the petitioner which was adjudicated by the impugned OrdersinOriginal dated 22 January 2016/ 1 February 2016. The adjudicating officer concluded that the value of the goods exported through ICD Mulund was intentionally misdeclared in the documents submitted to the Customs to avail ineligible duty drawback thereby violating Section 50(2) of the Customs Act. It was held that the goods exported in 63 consignments as listed in Annexure A and B to the order with declared value of ₹ 11,51,26,266/and redetermined value of ₹ 7,23,20,450/were liable for confiscation under Section 113(i) of the Customs Act and that the firm was liable for penal action under Section 114(iii) and the partnerspetition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority, confined his arguments on the issue of constitutional validity of Section 129E of the Customs Act, we accordingly keep the challenge to the Order-in-Original open to be agitated by the Petitioner before the appellate authority. 5. In assailing the legality of Section 129E of the Act, the contention interalia urged on behalf of the Petitioners is that the provision is discriminatory and violative of Articles 14, 19 and 21 of the Constitution. It would be appropriate to extract the contention of the petitioner in the terms as set out in the ground 'A' on page 17 of the petition which reads thus: ... . . That the impugned newly substituted Section 129E mandates pre-deposit of certain percentage of only the duty, in case where duty or duty and penalty are in dispute, and certain percentage of penalty where only penalty is in dispute before filing an appeal. It is submitted that therefore the said substitution is discriminatory between two identically placed classes, mandating one class to pre-deposit only certain percentage of duty where both duty and penalty are in dispute and mandating another class to pre-deposit certain percentage of penalty wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to facilitate trade, business and industry by speedy resolution of disputes before various appellate forums. It is submitted that the appellate authority's working hours were being consumed in disposing of applications for waiver on pre-deposit, these working hours can now be used for disposing of the main appeals preferred by the parties. It is submitted that even pre-deposit of disputed amount of duty or penalty for the longer period by the appellants is no more required after imposition of substituted Section 129E of the Act. The assessees are no more required to deposit the entire disputed amount to prevent the recovery officer, for not resorting to any coercive measure for recovery of dues. It is submitted that waiver of pre-deposit under the preamended Section of 129E of the Act was not as a matter of right of the Appellants and the Appellate authority after due consideration of the facts and circumstances of the case could grant a waiver in appropriate cases. It is submitted that under the present disposition after the amendment, the assessee gets immunity from any coercive action for recovery of dues in case the appeal is pending before any appellate authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that where in any particular case, the (Commissioner (Appeals)), or the Appellate Tribunal is of opinion that the deposit of (duty and interest) demanded or penalty levied would cause undue hardship to such person, the [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue; Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so decide such application within thirty days from the date of its filing. 10. As seen from a plain reading of the provision, Section 129E provides for deposit of certain percentage of duty demanded or penalty imposed or both, as a condition precedent for the appellate authority to entertain an appeal. Subclause (i) and (ii) of Section 129E mandates deposit of 7.5% of the duty demanded or penalty imposed or both, in case of an appeal before the Commissioner (Appeals) (Section 128A) and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty demanded or penalty imposed or both, and more particularly when penalty cannot be considered to be a revenue as it is not a tax requiring it to be safeguarded, also cannot be accepted. It may be pointed out that even the preamended provision stipulated for a deposit in case of appeals from orders levying penalty. This submission of the petitioners also cannot be accepted considering the decision of the Supreme Court in Vijay Prakash D.Mehta and Jawahar D.Mehta Vs. Collector of Customs (Preventive), Bombay AIR 1988 SC 2010, which lays down that right to appeal is a statutory right and not an absolute right, which can be circumscribed by the conditions in the grant. In Nand Lal Vs. State of Haryana AIR 1980 SC 2097 the Supreme Court referring to the earlier decision in Anant Mills Co. Ltd vs State Of Gujarat Ors. AIR 1975 SC 1234 held as under: It is well settled by several decisions of this Court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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