2018 (3) TMI 1337 - HC - Customs

Customs Act Section 129E upheld, petitioner to appeal, court stresses timeliness, Appellate Tribunal's discretion

Shaik Mohammed Javed Versus Union of India

The court upheld the constitutionality of Section 129E of the Customs Act, rejecting the challenge raised by the petitioner. It emphasized the ... Vires of section 129E of the Customs Act as section denies fundamental rights guaranteed by Articles 14 and 21 - Held that: - The Division Bench of this Court in Haresh Nagindas Vora v Union of India [2017 (6) TMI 964 - BOMBAY HIGH COURT] has held that mandatory requirement under Section 129-E cannot be considered as a revenue nor it is a tax and Section is enacted in public interest - the challenge to the Constitutional validity of Section 129-E, cannot succeed. Alternative remedy - Held that: - The self imposed rule of not entertaining a writ petition, when an efficacious remedy is available, is well settled. Only in exceptional circumstances, the Court may deviate from this self imposed rule. Since the Constitutional validity of the Act has been upheld and the challenge to the mandatory pre-deposit has been negatived, the remedy of appeal cannot be held to be not efficacious. There is a power conferred under Section 129-A(5) of the Act on the Appellate Tribunal to condone the delay in filing the appeal. This power being a discretionary power, it is not intended to prejudge the same. It is open to the Petitioner to contend that the Petitioner is entitled for condonation of delay on the ground of pendency of this Writ Petition, which the Tribunal will consider on its own merits. Petition disposed off. Issues:1. Challenge to the Constitutional validity of Section 129E of the Customs Act.2. Challenge to the order passed by the Commissioner of Customs.Analysis:1. The petitioner sought a declaration that Section 129E of the Customs Act is ultra vires to the Constitution of India as it allegedly violates fundamental rights guaranteed by Articles 14 and 21. The Commissioner of Customs had imposed a penalty and directed confiscation of gold bars and coins, leading to the petitioner filing a petition to quash the order. The respondent raised a preliminary objection regarding the challenge to the order, stating that an appeal under Section 129A of the Act provides an efficacious remedy. The court referred to a previous Division Bench judgment which held that Section 129E is enacted in public interest and not as a revenue or tax provision, thereby upholding its constitutionality. The court agreed with this conclusion, stating that the challenge to the Constitutional validity of Section 129E cannot succeed. Regarding the challenge to the order passed by the Commissioner, the court noted that an appeal is provided under the Act, making the remedy of appeal efficacious. The court emphasized the self-imposed rule of not entertaining a writ petition when an efficacious remedy is available, except in exceptional circumstances. As the challenge to the mandatory pre-deposit was negatived and the Constitutional validity of the Act upheld, the court found no justification to entertain the writ petition, as the petitioner could avail of the remedy of appeal.2. The court highlighted that the appeal must be filed within three months, and any delay due to the writ petition could be condoned by the Appellate Tribunal under Section 129A(5) of the Act. The court stated that the power to condone delay is discretionary and should be considered on its own merits by the Tribunal. The petitioner agreed to file an appeal within four weeks, and the court disposed of the writ petition accordingly.