TaxTMI 
TaxTMI 
2017 (6) TMI 964
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....on the show cause notice dated 24 August 2015, on the ground that the order is illegal being passed without considering the submissions of the petitioners. Briefly the facts are: 3. The petitioners in each of the petitions are partners of one M/s.Bright International which is stated to be engaged in the business of export and import of goods. The genesis is, a search conducted at the premises of M/s.Bright International by the Directorate of Revenue Intelligence (DRI) wherein large number of dubious invoices were recovered. The scrutiny of those invoices revealed that there were parallel invoices for various exports made by the partnership. Further scrutiny revealed that in 29 cases, one invoice indicated actual contract value and the other invoice indicated higher value which is used for availing undue duty drawbacks. It was also revealed that in the case of export of 71 shipping bills, some of the items exported were of the same value as mentioned in the actual value invoices recovered during search. The statements of both the partners of the firm were recorded under Section 108 of the Customs Act who admitted recovery of parallel invoices for the same goods exported by them. T....
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....wenty Lakhs only) on Shri.Harish Nagindas Vora under Section 114(iii) of the Customs Act,1962. vi. I impose a penalty of Rs. 2,00,000/( Rupee Two lakhs only) on Shri.Harish Nagindas Vora under Section 114AA of the Customs Act,1962. vii. I impose a penalty of Rs. 20,00,000/( Rupee Twenty Lakhs only) on Shri.Sachin Shah under Section 114(iii) of the Customs Act,1962. viii. I impose a penalty of Rs. 2,00,000/( Rupee Two Lakhs only) on Shri.Sachin Shah under Section 114AA of the Customs Act,1962. 4. Against the above Order-in-Original, an appeal is maintainable under Section 128 of the Customs Act before the Commissioner of Customs (Appeal). During the course of the arguments, the learned Counsel for the petitioners appreciating the settled legal position that this Court in exercise of writ jurisdiction under Article 226 of the Constitution would not wield the powers of an Appellate Authority, confined his arguments on the issue of constitutional validity of Section 129E of the Customs Act, we accordingly keep the challenge to the Order-in-Original open to be agitated by the Petitioner before the appellate authority. 5. In assailing the legality of Section 129E of the Act, ....
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....ply affidavit of Mr.B.Bhattacharya, Principal Commissioner of Customs, dated 16 September 2016 has been filed. On behalf of the revenue it is contended that the challenge as raised is no more res integra in view of the decision of the Division Bench in the "Nimbus Communications Ltd. Vs. Commissioner of S.T., Mumbai" 2016(44) S.T.R. 578 (Bom.) as also following the said decision, the Division Bench also dismissed Writ Petition No.747 of 2017 in the very same case. It is contended that also other Writ Petitions in the case "Ajit Bapu Satam Vs. Union of India & Anr." Writ Petition No.7948 of 2015 Order dt.3.10.2016 and "Deepak Sharad Jare Vs. Union of India & Anr." Writ Petition No.9148 of 2015 Order dt.3.10.2016 were dismissed by the Division Bench by order dated 3 October 2016. 8. Learned Counsel for the revenue contends that the substituted section has been introduced as a measure to facilitate trade, business and industry by speedy resolution of disputes before various appellate forums. It is submitted that the appellate authority's working hours were being consumed in disposing of applications for waiver on pre-deposit, these working hours can now be used for disposing of t....
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....the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act,2014." It would also be appropriate to note the said provision as it stood prior to its amendment by the Act 25 of 2014, which reads as follows: "Section 129E prior to the amendment 129E. Deposit, pending appeal, of (duty and interest) demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any (duty and interest) demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the (duty and interest) demanded or the penalty levied: Provided that where in any particular case, the (Commissioner (Appeals)), or the Appellate Tribunal is of opinion that the deposit of (duty and interest) demanded or penalty levied would cause undue hardship to such person, the [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal may dispense with such deposit s....
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....providing deposit of 7.5% and 10% respectively as subclauses (i), (ii) and (iii) respectively provide. If such is the aim and insight behind the provision, it certainly cannot be held to be unreasonable, onerous, unfair or discriminatory for two fold reasons. Firstly, the object of a public policy sought to be achieved by the amendment, namely speedy disposal of the appeals before the appellate authorities is a laudable object and cannot be overlooked, so as to label the provision as unreasonable and onerous and violative of Article 14 of the Constitution. Secondly that the amount which is required to be deposited is not unreasonable from what the earlier (pre amended) regime provided. 12. The contention of the petitioner that the provision is rendered discriminatory as it creates two different classes when it mandates pre-deposit of duty demanded or penalty imposed or both, and more particularly when penalty cannot be considered to be a revenue as it is not a tax requiring it to be safeguarded, also cannot be accepted. It may be pointed out that even the preamended provision stipulated for a deposit in case of appeals from orders levying penalty. This submission of the petitioner....