2023 (9) TMI 1203 - HC - Customs

Pre-deposit Requirement Upheld; Petitioner's Case Not Rare or Exceptional to Waive Under Customs Act Section 129E.

Ajay Sagar Versus Principal Commissioner Of Customs (Import)

The HC dismissed the writ petition, concluding that the petitioner's case did not qualify as rare and exceptional, thereby not justifying the waiver of ... Invocation of extraordinary jurisdiction conferred upon the Court by Article 226 of the Constitution - framing directions for waiver of the pre- deposit requirement as placed in terms of Section 129E of the Customs Act, 1962 - HELD THAT:- From the material gathered in the course of investigation, the statements attributed to the persons involved including the petitioner as well as the conclusions drawn and recorded in the Order-in- Original it is manifest that the respondents had found that the petitioner was complicit and actively involved in the evasion of duty and the intent of these parties to mis-declare imports while acting in concert. Bearing in mind the material which has been relied upon and the nature of the allegations levelled against the petitioner, we find ourselves unable to hold that his case would fall in the category of rare and exceptional cases. Prima facie, and solely for the purposes of examining whether waiver is merited, we have delved through 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. Issues Involved:1. Waiver of Pre-Deposit Requirement under Section 129E of the Customs Act, 1962.2. Invocation of High Court's Jurisdiction under Article 226 of the Constitution.3. Examination of Petitioner's Case as Rare and Exceptional.Summary:Waiver of Pre-Deposit Requirement under Section 129E of the Customs Act, 1962:The petitioner sought the Court's intervention to waive the pre-deposit requirement mandated by Section 129E of the Customs Act, 1962, which no longer allows the Commissioner (Appeals) or CESTAT to waive this condition due to undue hardship. The Court noted that prior to the 2014 amendment, there was discretion to waive this deposit if it caused undue hardship.Invocation of High Court's Jurisdiction under Article 226 of the Constitution:The petitioner's counsel argued that despite the amendment, the High Court retains the power under Article 226 to waive the pre-deposit in appropriate cases. The Court referenced its decision in Mohd. Akmam Uddin Ahmed & Ors. vs. Commissioner Appeals Customs and Central Excise and Others, which affirmed that the High Court's jurisdiction under Article 226 is preserved and can be invoked in rare and deserving cases to waive or reduce the pre-deposit requirement.Examination of Petitioner's Case as Rare and Exceptional:The Court examined whether the petitioner's case fell into the category of rare and exceptional cases warranting waiver. The respondents had concluded, based on intelligence and investigation, that the petitioner was involved in evading customs duty by mis-declaring imports. The investigation included statements from various parties and evidence of the petitioner's involvement in fraudulent activities. The Court found that the material gathered and the conclusions drawn by the respondents were neither perverse nor unsustainable, and thus, the petitioner's case did not merit the invocation of extraordinary powers under Article 226.Conclusion:The Court concluded that the petitioner's case did not fall within the rare and exceptional category that would justify waiving the pre-deposit requirement. Consequently, the writ petition was dismissed.