TMI Blog2022 (10) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the CESTAT by filing an Appeal under Section 129 E of the Act since there are various disputed questions of facts involved that requires to be considered. Further, as pointed out by Mr. Jetly, petitioner s statements have been recorded under Section 108 of the Act, where petitioner has admitted his role and none of those statements are retracted. The petition requires to be dismissed. Petition dismissed. - WRIT PETITION NO.673 OF 2020 - - - Dated:- 18-10-2022 - K.R. SHRIRAM A.S. DOCTOR, JJ Mr. Devesh Tripathi a/w Mr. Jaiprakash Shahdadpuri, Ms Pankti Shah for Petitioner. Mr. Pradeep Jetly, Sr. Advocate a/w Mr. J. B. Mishra for Respondents. Mr. Aakash Singhai, Additional Commissioner, Customs, Indore, present. P.C. : 1. Petitioner is impugning an order dated 30th July 2019 passed by respondent no.3. 2. Respondents on the basis of intelligence inputs, intercepted a container destined for ICD, Dhannad, Madhya Pradesh in the name of M/s Topper Milk (India) Pvt Ltd. Indore with the manifest mentioning the goods as footwear and fabric . On examination, it was found to contain Electroshock battons, Knuckle dusters and suspected counterfeit person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain 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 before the Tribunal (Section 129A) respectively. Clause (iii) of Section 129E provides for deposit of 10% of the duty demanded or penalty imposed or both in pursuance of the order appealed against. The first proviso provides that the amount which is required to be deposited under this section shall not exceed Rs.10 crores. 11. The intention of the Parliament in amending Section 129E by the amending Act in question needs to be noted. Prior to the amendment, in view of the powers and discretion conferred with the appellate authority to waive/dispense with the predeposit, substantial time was expended on the adjudication of such applications and in deciding issues, as to whether, the contention of the applicant in the stay application, of an undue hardship is being caused, could be accepted to grant an appropriate waiver. Resultantly, orders on the stay application generated further litigation before the higher forums taking a toll on the valuable time of the tribunal delaying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reature 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 right almost illusory (vide the latest decision in Anant Mills Ltd. v.State of Gujarat, AIR 1975 SC 1234) Thus by virtue of Section 129E the right to appeal as conferred under the said provision is a conditional right, the legislature in its wisdom has imposed a condition of deposit of a percentage of duty demanded or penalty levied or both. The fiscal legislation as in question can very well stipulate as a requirement of law of a mandatory pre-deposit as a condition precedent for an appeal to be entertained by the appellate authority. In view of the above settled position in law, Section 129E of the Act cannot be held to be unconstitutional on the ground as assailed by the petitioner. 13. Learned Counsel for the revenue is quite right in relying on the decision in the case Nimbus Communications Ltd.(supra), though it arises in the context of Section 35F of the Central Excise Act which is a provision pari materia to Section 129 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional validity of the amended Section 35F. Under the amended provisions, there was a clear legislative mandate that the appeal shall not be entertained under subsection (1) of section 35 unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both in pursuance of a decision or an order passed by an officer of the Central Excise. The court held that Section 35F as amended cannot be held to be unconstitutional because with the amendment the legislature felt the interest of the Revenue which had to be secured was the paramount consideration in both the unamended and amended provision. Paragraphs 18, 19 and 21 read as under: 18. As against this, we have a view which has been taken by the Division Bench of the Allahabad High Court. In the case of Ganesh Yadav, the service tax demand confirmed by the Additional Commissioner, Central Excise, Customs and Service Tax, Allahabad, was sought to be impugned. The argument was that even if the appellate remedy can be resorted to that is rendered illusory by a mandatory requirement of pre deposit of seven and a half per cent and, therefore, a declaration was claimed that such a manatory prescription is ultra vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady past, must be presumed to be intended not to have a retrospective effect . As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (emphasis supplied) 19. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No.2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Therefore, the question of granting prayer clause (a) would not arise, i.e., waiver of pre-deposit. 8. Mr. Tripathi, counsel for petitioner also submitted that penalty has been imposed under Section 112(a) and (b) (i) of the Customs Act, 1962 (the Act). Mr. Tripathi submitted that there is no basis for arriving at the valuation to impose a penalty not exceeding the value of the goods or to arrive at the figures approximately of Rs.185 crores as the value of the goods. Mr. Tripathi also submitted that there is no finding as to whether the goods were prohibited goods. 9. The other point, which Mr. Tripathi raised was that petitioner wanted to cross-examine certain persons on whose statement respondents have relied upon but that was not granted and hence there is a breach of principles of natural justice. 10. Per contra, Mr. Jetly submitted that the 210 pages elaborate impugned order has in detail dealt with the facts of the case, role of petitioner and how the goods are prohibited goods and how the value was arrived at. Mr. Jetly submitted that the adjudicating authority has considered the issue as to whether the goods imported using dummy IECs and without outward remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others [(1970) 2 SCC 728] wherein it was contended that the expression 'prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visage any favourable purpose as to why Achievers International which also has IEC Certificate, had resorted to import the DVD-Rs/CD- Rs in the name of the dummy entities. The reason was known to Achievers International and no one else. They should have given an explanation and the onus was on them. Reasons for setting up and making imports through a dummy concern can be many, but all of them will be negative or involve illegality in some form or the other. It is apparent from the impugned order and the reasoning given by the tribunal that this aspect has been noticed but its relevancy and importance has been ignored. The reasoning given by the tribunal in fact records and states that this aspect was unclear and had not been satisfactorily explained by Achievers International. This is an important facet to decide whether or not redemption fine should be imposed in lieu of confiscation and what should be the quantum of fine. At the same time, Revenue was not able to fathom and indicate why Achievers International/ Vineet Gupta had made imports in the name of Neeru Trading Company and not in their own name. No investigation was made whether imports made by Neeru Trading Company would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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