2019 (7) TMI 1303 - HC - Customs

Court dismisses writ petition, upholds amended Customs Act, 1962; 7.5% pre-deposit rule applies.

M/s. Hi Bright Apparels (P) Ltd. Versus The Customs, Excise & Service Tax Appellate Tribunal, The Commissioner of Central Excise

M/s. Hi Bright Apparels (P) Ltd. Versus The Customs, Excise & Service Tax Appellate Tribunal, The Commissioner of Central Excise - TMI Issues Involved:1. Entitlement to benefit of pre-amended Section 129E of the Customs Act, 1962.2. Application of Section 6 of the General Clauses Act, 1987 regarding repeal and substitution of statutory provisions.3. Financial inability and waiver of pre-deposit requirements under amended Section 129E.4. Validity of confiscation and auction of goods without proper notice.5. Alleged violations and penalties imposed under the Customs Act, 1962.Issue-wise Detailed Analysis:1. Entitlement to Benefit of Pre-Amended Section 129E:The petitioner argued that their right to file an appeal accrued prior to the amendment of Section 129E of the Customs Act, 1962, and thus should be governed by the pre-amended section, which allowed for discretionary waiver of pre-deposit. The court compared the provisions of Section 129E before and after the amendment. The pre-amended section allowed for discretionary waiver of pre-deposit by the tribunal, whereas the amended section mandated a fixed pre-deposit of 7.5% of the duty or penalty. The court concluded that the appeal would be governed by the amended section as it stood on the date the appeal was filed.2. Application of Section 6 of the General Clauses Act:The petitioner contended that Section 6 of the General Clauses Act, 1987, which protects rights accrued under repealed enactments, should apply. However, the court noted that the entire Section 129E had been substituted, and therefore, the appeal must be governed by the new provision. The court referenced the case of Dream Castle Vs. Union of India, which held that amendments imposing new conditions for appeals do not take away vested rights but merely change the conditions for exercising those rights.3. Financial Inability and Waiver of Pre-Deposit Requirements:The petitioner sought waiver of the pre-deposit requirement due to financial inability, arguing that the amount realized from the auction of confiscated goods should be considered as the pre-deposit. The court held that the amended Section 129E does not provide for waiver of the mandatory pre-deposit and that the tribunal has no discretion to waive it. The court emphasized that the amended section applies to all appeals filed after its enactment, regardless of when the right to appeal accrued.4. Validity of Confiscation and Auction of Goods Without Proper Notice:The petitioner claimed that the goods were auctioned without proper notice, which they only became aware of through an RTI reply. The court did not address this issue in detail, focusing instead on the applicability of the amended Section 129E and the requirement for pre-deposit.5. Alleged Violations and Penalties Imposed:The petitioner challenged the penalties and duties imposed by the Commissioner of Central Excise, arguing that there were no violations of the EOU Scheme or relevant customs notifications. The court did not delve into the merits of these allegations, as the primary issue was the applicability of the pre-deposit requirement under the amended Section 129E.Conclusion:The court dismissed the writ petition, holding that the amended Section 129E of the Customs Act, 1962, which mandates a pre-deposit of 7.5% of the duty or penalty, applies to the petitioner's appeal. The court found no merit in the arguments regarding the applicability of the pre-amended section or Section 6 of the General Clauses Act. Consequently, the connected writ miscellaneous petitions were also closed.