TMI Blog2023 (9) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the relevant record and find that the conclusions drawn by the respondents insofar as the petitioner is concerned can neither be said to be wholly perverse or unsustainable. The circumstances do not warrant the invocation of the extraordinary power conferred by Article 226 of the Constitution. Petition dismissed. - HON'BLE MR. JUSTICE YASHWANT VARMA HON BLE MR. JUSTICE DHARMESH SHARMA For the Petitioner Through: Mr. Deepak Gandhi and Mr. Bhavneet Arora, Advs. For the Respondent Through: Ms. Satish Kumar, Sr. SC along with Ms Vaishali Goyal, Adv. JUDGMENT YASHWANT VARMA, J. 1. The instant writ petition has been preferred seeking to invoke the extraordinary jurisdiction conferred upon the Court by Article 226 of the Constitution and to frame directions for waiver of the pre- deposit requirement as placed in terms of Section 129E of the Customs Act, 1962 [Act]. 2. The petitioner is constrained to approach this Court since Section 129E of the Act no longer incorporates a provision which may be invoked by either the Commissioner (Appeals) Customs and Central Excise [Commissioner (Appeals)] or the Customs, Excise Service Tax Appellate Tribunal [CESTAT] to waive the condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of waiver of the pre-deposit would be contrary to the express legislative intent of the amendment. However, it further held that the jurisdiction of the High Court under Article 226 cannot be taken away and that such power should be used only in rare and deserving cases where a clear justification is made out for such interference as follows: 9. A direction, therefore, to the CESTAT that it should waive the pre-deposit would be contrary to the express legislative intent expressed in the amended Section 35-F with effect from 6-8-2014. While, the jurisdiction of the High Court under Article 226 of the Constitution to grant relief notwithstanding the amended Section 35-F cannot possibly be taken away, the court is of the view that the said power should be used in rare and deserving cases where a clear justification is made out of such interference. Having heard the submissions of Mr Datta and having perused the adjudication order, the court is not persuaded to exercise its powers under Article 226 to direct that there should be a complete waiver of the pre-deposit as far as the petitioner's appeal before the Cestat is concerned . (emphasis supplied) 28. The Coordinate Benches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the appellant therein. The relevant extract is below: 10. Given the aforesaid facts, while we are inclined to accept the preliminary objection of the respondents on the alternative remedy, we are also inclined to interfere and relax the condition of pre-deposit. We would direct that on the petitioner making a pre-deposit of Rs 5,00,000 in addition to Rs 3,70,008, the appeal which would be filed by the petitioner would be entertained by the first appellate authority. The pre-deposit would abide by the result of the appeal. First appeal, if preferred within 21 days, would not be rejected on the ground of limitation. 11. In Pioneer Corpn. v. Union of India [ Pioneer Corpn. v. Union of India, 2016 SCC OnLine Del 6758 : (2016) 340 ELT 63] , a Division Bench of this Court has held that the High Court while exercising writ jurisdiction under Article 226 of the Constitution can exercise discretion and reduce the pre-deposit in rare and deserving case, notwithstanding the amendment made under Section 35-F of the Customs Act (sic Central Excise Act). The statute has not withdrawn or taken away the said power vested in the writ court, which should be exercised in rare but compelling and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. v. P. Laxmi Devi, (2008) 4 SCC 720] in which the Supreme Court observed that recourse to the writ jurisdiction would not be ousted in an appropriate case . (emphasis supplied) xxx xxx xxx 34. A Coordinate Bench of this Court in Dish TV India Ltd. case [Dish TV India Ltd. v. Union of India, 2020 SCC OnLine Del 2580] , in a matter concerning the import of satellite/viewing cards by the petitioner company, upheld the mandatory pre-deposit in view of the amendment to the Act. The aforesaid judgment while discussing the amendment of Section 129-E of the Act noted the fact that the petitioner's annual turnover for Financial Year 2018- 2019 was more than Rs 6000 crores and that the mandatory pre- deposit would be a miniscule percent thereof, has directed the pre- deposit be made. 35. The Coordinate Bench in Dish TV India Ltd. case [ Dish TV India Ltd. v. Union of India, 2020 SCC OnLine Del 2580] relied on the previous decision in Diamond Entertainment Technologies (P) Ltd. v. Commr., CGST [Diamond Entertainment Technologies (P) Ltd. v. Commr., CGST, 2019 SCC OnLine Del 12414 : (2019) 368 ELT 579] and Anjani Technoplast Ltd. v. Commr. of Customs [Anjani Technoplast Ltd. v. Commr. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appropriate cases to absolve assesses of the financial burden flowing from the requirement of a pre deposit. However, the judgment enters a note of caution by holding that the said power would be liable to be invoked in rare and deserving cases or where extraordinary situations and circumstances warrant the exercise of that discretion. 7. While affirming the principles that were enunciated in Narender Yadav vs. Joint Commissioner of Customs (Exports) 2019 SCC OnLine Del 12415 , the Court in Mohd. Akmam Uddin Ahmed reaffirmed the principle that the writ jurisdiction would be liable to be exercised in rare but compelling and deserving cases, when the cause of justice requires such reduction . We are thus left only to consider whether the case of the petitioner would fall in the rare and exceptional category. 8. The facts as disclosed on the record would indicate that the respondents on the basis of intelligence received came to conclude that various importers including M/s M.M. Enterprises were illegally importing worn clothing and electronic goods by mis-declaring them to be Assorted Printed Books . The Directorate of Revenue Intelligence [DRI] officers on the basis of inputs re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e actual importers of books, namely-M/s Canam Books and M/s Daman Impex. The cartel apparently devised a strategy where they planned to use these containers as a decoy for being produced before the Examining Officer of the import shed against the container of other dutiable goods, including 'worn clothing which had been under restricted category. Therefore, when the containers of books of either of these two importers arrived in the ICD, the same would be deliberately withheld for some time after getting the Customs out of charge, if a consignment, which was sought to be cleared by way of mis- declaration was due to be available soon. This Container of books was then presented before the Customs for getting clearance of the Container of dutiable goods, such as worn clothing, electronic goods etc. xxx xxx xxx 55. The evidences put forth by the department are discussed below:- (i) xxx (ii) xxx (iii) Statements of various persons recorded during the course of investigation 55.7 During the course of Investigation various statements were recorded. The evidences collected through statements in a tabular form are as follows:- TABLE-E Sr.No. Noticee No. Name of person Recorded on Evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 19 29 Shri Ajay Sagar 18.02.2009 (i) that he was working for M/s Fantastic Cargo Movers since the beginning (ii) that he was providing clients to M/s Fantastic Cargo Movers whose consignments were cleared by them in the guise of Assorted Printed Books (iii) that in December 2008, Shri Ashish Chadha, S/ o Shri Jugal Kishore Chadha told him to arrange the IEC name and address for clearance of worn clothing, which had become restricted, but since he was unable to do so, Shri Ashish Chadha arranged the IEC of M/s M.M. Enterprises ( iv) that in the month of December 2008 and January 2009, he got cleared 7 consignments in the name of M/s M.M. Enterprises in the guise of Assorted Printed Books (v) that he forged signatures on behalf of M/s M M Enterprises while receiving delivery orders from concerned shipping line- M/S Hyundai Merchant Marine India Pvt. Lid. and M/s K-Line. 20 29 Shri Ajay Sagar 24.03.2009 he was, interalia, shown the statement of Ashish Chadha containing the details of SMSs exchanged between them and he agreed to the contents of the said statement. 25 3 Shri Ashish Chadha 26.02.2009 (i) that the consignments cleared in the name of M/s M.M. Enterprises belonged to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently deposited an amount of Rs. 3,00,000 towards duty liability. 51 29 Shri Ajay Sagar 06.12.2010 (i) He reiterated all the earlier statements including the latest ones on the clearances related to the period 2006-07 and the modus operandi in the import shed (ii) he was working independently as well and he handled forwarding on his own account of two parties namely Canam Books Daman Impex who were importing books (iii) that since he was already dealing with forwarding work for his company, he had all the contacts and hence he could manage the forwarding of those consignments (iv) that for the clearance of those consignments he took the services of M/ s Shivoy Enterprises (v) that in the year 2006-2007, Deepak Seth had told him to withhold containers of books even after clearance on several occasions (vi) that at that time he was not aware about the exact reason for this since Deepak Seth used to give him a discount of Rs. 10,000 per container xxx xxx xxx 56.5.1 As far as retraction in r/o. other Noticees to the SCN are concerned, I find though the Hon'ble Court was aware yet they were sent to judicial custody. Further each of the Noticees who retracted their first stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Sagar with the alleged conspiracy was an SMS exchange with the importer. The SMS that is not admissible as per decisions of the Hon'ble Apex Court. 2. The contents of SMS have been accepted by the Importer in his statements. The evidence cannot be brushed aside. Accordingly, the defense submissions merit rejection. D.1 They submitted that the SCN relies heavily on the SMS chats between Noticee and Ashish Chaddha which cannot be received in evidence since they are not accompanied by a certification as required by Section 65B of the Evidence Act. Therefore, any conclusion based on the same is non-est in the eyes of law and cannot be read against the Notices and proposed accomplices. 2. The SMS were retrieved and submitted voluntary, which is certification itself, under Panchnama. I find that the aforesaid is the finding during examination and was recorded under Panchnama. The Panchnama is essentially a document recording certain things which occur in the presence of the Panchas and which are seen and heard by them. Accordingly, the submissions are not acceptable. 3. In view of the above discussions, the complicity of the Noticee is established. 12. From the material gathered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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