TaxTMI 
TaxTMI 
2018 (7) TMI 1609
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....ll over India. Before dealing with the relief sought in the petition, we would briefly refer to some chronological facts. 2. The petitioner company which is duly incorporated under the provisions of Companies Act is having its registered office at 1241, Solitaire Corporate Park, Building no.12, 4th floor, Andheri Ghatkopar Link Road, Andheri (East) Mumbai. The respondent no.2 is the Commissioner of Customs (Import) whereas the respondent no.3 is the Commissioner of Customs (Appeals). Respondent nos.4 and 5 are the officers subordinate to the respondent no.2. The petitioner is engaged in the import and trading of various medical devices and during the normal course of business, the petitioner imported A & V Plastic Tubings claiming the benefit of exemption under notification 17/2001CUS dated 1st March 2001 from the Basic Customs duty and the Additional Duty under section 3(1) of the Customs Tariff Act, 1975. The petitioner has produced on record a copy of the Bill of Entry in relation to the said goods dated 7th June 2001. It is the case of the petitioner that the goods were assessed provisionally and he was allowed to clear the goods on the basis of Provisional Duty Bond a....
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....espondent no.3 took up the application for grant of stay filed by the petitioner appellant and on 22nd March 2012 made the following observation : No one appeared for personal hearing on 08.02.2012 but written submission signed by Shri. Virendera Sancheti, Authorised Representative of the appellant has been submitted and reiterated the grounds of appeal. Party has sought grant to stay to the operation of impugned order dated 28.01.2010. Considering the submissions, I direct the appellant to deposit the demand confirmed within one week from the date of issue of the order. On deposit of the said amount the appeal would be taken up on merit. 5. Copy of the said order was forwarded to the petitioner on the address mentioned in the appeal memo with a copy to Willingdon and Associates on the address also given in the Appeal memo. The respondent no.3 took up the matter for hearing on 14th May 2012 when the petitioner was represented by a counsel for conduct of personal hearing. The counsel for the petitioner placed reliance on various case laws and made an earnest request to withdraw the interim order passed on 22nd March 2012. The respondent no.3 took note of the contention rais....
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....e from the Recovery Officials and in order to ascertain the status of the appeal, the petitioner filed an RTI Application and it is through an application dated 9th May 2017 the petitioner sought a copy of the order dated 13th September 2012, which he received on 26th May 2017. In response to the RTI Application, the petitioner was only provided the proof of dispatch from the department but it in no way, provided a proof of service of the order dated 13th September 2012 on the petitioner. It is the specific case of the petitioner that on further inquiry from the department, it appears that even the department does not have any proof that the order dated 13th September 2012 is served on the petitioner. Thereafter, on 28th September 2017, the petitioner was served with a detention order which is impugned in the present petition by which the respondent no.4 has instructed all the field officers to recover the demand confirmed by the Order-in-Original dated 21st August 2009 from all the monies payable to the petitioner. It further instructed to recover the said amount by detaining and selling the goods belonging to the petitioner. The petitioner attempts to canvass before us that wh....
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....e petitioner and therefore, he was not aware that he had an option of paying 50% of the demand confirmed within two weeks so as to list the appeal for final hearing on merits. The learned counsel would submit that he carried an impression that the Appeal is still pending, since nothing contrary was communicated to the petitioner. Shri Shah would submit that the pre-deposit of the amount as a condition precedent would not be a condition precedent for hearing an application for grant of stay and he would submit that in terms of Section 129E of the Customs Act, 1962, on consideration of the undue hardship pointed out by the appellant, Commissioner had directed an amount of 50% to be deposited but he was not made aware of an order passed by the Commissioner of Customs (Appeals) directing the appellant to deposit 50% of the demand confirmed within two months and it was only on deposit of such amount, the Appeal would be heard on merits. Shri Shah would submit that in absence of the petitioner having any knowledge of such an order, the amount was not deposited since the petitioner was under a bonafide impression that the Appeal was pending before the Commissioner of Customs (Appeals). Sh....
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....tracked for five years an order which they had themselves appealed, is far fetched. A categorical statement is made in the affidavit that the Miscellaneous Application filed by the petitioner was decided by the Commissioner (Appeals) i.e. respondent no.3 on 16th May 2012 with direction to pre-deposit 50% of the demand confirmed within two months from the date of issue of the order, failing which the case will be dismissed without going into merits of the case. It is further stated that the Commissioner (Appeal) by order dated 12th September 2012 had redirected the petitioner to comply with the interim order within two weeks of the receipt of the order. However, on account of utter failure on part of the petitioner to comply with the direction, the Appeal filed by the petitioner was deemed as dismissed for non-compliance of the earlier Miscellaneous order dated 16th May 2012 and accordingly, the relevant entry in Appeal Register maintained in the section was taken. The learned counsel Shri Jetly relied on the said affidavit and would submit that there is no Appeal pending before the respondent no.3 and the petitioner has rather misconstrued the status of their appeal by treating the....
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....s from the date which it is filed and the order of the Commissioner disposing of the appeal is to be in writing, stating the points for determination, the decision and the reasons for the decision. Section 129E imposes a condition for entertainment of an Appeal by the Tribunal or the Commissioner (Appeals), as the case may be, and the existing Section 129E was substituted by Act No.25 of 2014 with effect from 6th August 2014. Prior to its substitution, the person desirous of appealing against a decision relating to any duty and interest demanded in respect of goods, not under the control of Custom Authorities or against any penalty levied under the Act, was mandated by the statute to deposit the duty and the interest demanded or the penalty levied prior to the Tribunal or the Commissioner (Appeals) entertaining any Appeal. Since in the present case, the Order-in-Original is dated 24th August 2009 and the petitioner has preferred an Appeal under Section 128 on 18th September 2009, he is governed by Section 129E as it stood prior to its amendment with effect from 6th August 2014. As per the said provision, whenever any Appeal is filed against a decision or order, in respect of the....
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....ships observed thus : These observations cannot be applied to the facts of this case. Here we are concerned with the right given under Section 129A of the Act as controlled by Section 129E of the Act, and that right is with a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations of Section 129E. The proviso gives a discretion to the authority to dispense with the obligation to deposit in case of "undue hardships". That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority. In this case it is manifest that the order of the Tribunal was passed honestly, bona fide and having regard to the plea of 'undue hardship' as canvassed by the appellant. There was no error of jurisdiction or misdirection". It has been consistently held by the Hon'ble Apex Court as well as this Court that a reasonable condition imposed, by way of a statutory power e....
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....resent petition would reveal that the address reflected by the petitioner as having its registered office is stated to be at 1241, Solitaire Corporate Park, Bldg No.12, 4th floor, Andheri Ghatkopar Link Road, Andheri (East), Mumbai. Further, a statement is made in the affidavit filed by the Deputy Commissioner of Customs that it was the duty of the petitioner to communicate the authorities with the changed address and the changed address was not informed by the petitioner to the department. It is thus clear that the said order which has been passed on 13th September 2012 making the condition of deposit of 50% amount as a condition precedent for hearing of appeal and in absence of which directing its dismissal was never communicated to the petitioner. Thus, the petitioner was never made aware of the fact that the Appeal filed by him resulted into a dismissal on expiry of period of two weeks from 12th September 2012. It is for the first time in the affidavit which is tendered on behalf of the Revenue the petitioner is made known that by deeming fiction, the appeal filed by him stand dismissed on expiry of period of two weeks from 13th September 2012 in view of the contingency that th....