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2023 (9) TMI 1203
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....f the Act as it stood prior to its amendment by Finance Act (No .2) of 2014 had conferred a discretion on the Commissioner (Appeals) as well as the CESTAT to dispense with the deposit liable to be made for the purposes of an assessee pursuing an appeal where it was found that the deposit of duty, interest or penalty levied would cause undue hardship. 3. Mr. Gandhi, learned counsel for the petitioner had contended that notwithstanding the deletion of that provision from Section 129E of the Act, this Court by virtue of its constitutional powers would still be entitled to waive the condition of a pre-deposit in appropriate cases. 4. Our attention was drawn to the recent decision rendered by a Division Bench of the Court in Mohd. Akmam Uddin Ahmed & Ors. vs. Commissioner Appeals Customs and Central Excise and Others 2023 SCC OnLine Del 2450 where the question of the power of a High Court to dispense with the requirement of pre-deposit and to frame appropriate directions reducing the burden on an assessee in extraordinary and exceptional circumstances was answered in the following terms: - "26. The petitioners placed reliance on judgments of Coordinate Benches of this Court in Pione....
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....ustoms, 2019 SCC OnLine Del 12415] and Shubh Impex case [Shubh Impex v. Union of India, 2018 SCC OnLine Del 8793], both of which, while dealing with the amended provision of Section 129-E of the Act, have permitted waiver of the mandatory pre-deposit as is envisaged in the said provision but, in exceptional circumstances. 29. In Narender Yadav case [Narender Yadav v. Commr. of Customs, 2019 SCC OnLine Del 12415], a Coordinate Bench of this Court, while recording that the petitioner was a salaried employee drawing Rs 14,500 per month (i.e., Rs 1,74,000 per annum) and that the order-in-original did not give any reasons for the penalty imposed on the petitioner, directed that the requirement of pre-deposit under Section 129-E of the Act be waived. The relevant extract is below: "... The petitioner's grievance is that as H-card holder, imposition of over Rs 3.8 crores penalty in the overall circumstances of the case, given that the order-in-original did not record any specific adverse finding against him, is unwarranted. The petitioner, therefore, seeks a direction that the requirement of pre-deposit as a condition for the hearing and disposal of the appeal - before the Commiss....
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....uires such reduction." (emphasis supplied) 31. Another Coordinate Bench of this Court in Manoj Kumar Jha v. DRI [Manoj Kumar Jha v. DRI, (2019) 365 ELT 166], allowed the appeal to be prosecuted on payment of partial pre- deposit, given the financial stringency of the appellant in the case, subject to the furnishing of bond or reasonable security. Reference can be made to para 3 of this judgment, which reads as follows: "3. To this Court, it appears that the petitioner is a man of limited means. It is not clear whether any prosecution has been launched against the petitioner. In these circumstances, in view of the material-on-record which suggests that the petitioner has very limited means to deposit any amounts, this Court is of the opinion that the relief is warranted. The requirement of pre-depositing of any amount directed to be waived, however, the petitioner shall furnish a bond and also provide reasonable security having regard to the list of immovable properties produced before the court. Subject to this, the requirement of pre-deposit is hereby waived. The petitioner's appeal shall be revived and now Cestat shall proceed to hear the parties on its merits after iss....
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.... OnLine Del 13070 : (2015) 326 ELT 472] to hold that waiver of pre-deposit cannot be granted. xxx xxx xxx 41. Thus, an analysis of the conspectus of law as enunciated above gives a clear understanding that after passing of the Amendment Act on 6-8-2014, the amended Section 129-E of the Act and also Section 35-F of the CE Act shall be applicable in those cases where the appeal has been filed after 6-8-2014. 42. However, as discussed above, the Coordinate Benches of this Court have exercised and, thus, preserved the power as available under Article 226 of Constitution of India to either waive the pre- deposit condition or to grant the right to appeal subject to a part deposit or security. The power, albeit, has been exercised only in rare and exceptional cases. 43. It was held by the Allahabad High Court, speaking through Dr D.Y. Chandrachud, Chief Justice (as His Lordship then was) in Ganesh Yadav case [Ganesh Yadav v. Union of India, 2015 SCC OnLine All 9174] that: "8. ... Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35-F of the Act, is a separate matter altogether but it is....
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....inputs received came to form the opinion that those importers were deliberately adopting means to evade payment of appropriate customs duty. Various searches are stated to have been conducted and imported containers examined. During the course of the investigation, the DRI Officers also recorded the statements of several parties including the petitioner here. The petitioner is also stated to have been arrested and produced before the Court of the Metropolitan Magistrate before whom on 18 February 2009 he is stated to have retracted his statement. 9. A Show Cause Notice [SCN] dated 20 May 2011 came to be issued to the petitioner responding to which a reply was submitted for the consideration of the Adjudicating Authority. Ultimately, and on 27 May 2022, the Order-in-Original came to be passed with the Adjudicating Authority holding the petitioner liable to pay a penalty of Rs. 25,00,000/- under Section 112 of the Act and Rs. 1,00,00,000/- under Section 114AA of the Act. 10. Aggrieved by the aforesaid order, the petitioner is stated to have filed an appeal before the CESTAT. However, the same was not numbered as the petitioner did not comply with the provisions of Section 129E of t....
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....e No. Name of person Recorded on Evidence collected through statement 12 27 Shri Vijay Sagar 18.02.2009 (i) that in October, 2007, he along with Shri Gaurav Gupta opened a freight forwarding firm M/s Fantastic Cargo Movers, in which he was a partner and during the period from February 08 to January 09, had cleared 28 import consignments at nil rate of duty, mis declaring the goods as "Assorted Printed Books". (ii) that out of the 28 consignments, in 12 consignments of electronic goods (air conditioners and digital video cassettes), he provided name and IEC codes of firms for facilitating Customs clearance; that he used to charge 13,85,000 per container for those clearances; and that for clearance of consignments of worn out garments, he received 12,20,000/- per container through Amit Sharma and Ajay Sagar who in turn were in direct contact with the importer (iii) that he forged the import documents such as bill of lading, packing list and invoice (iv); that they had cleared 12 consignments of air conditioners & digital video cassettes of Shri Mohit Chadha, 37 /13 West Patel Nagar, New Delhi - 8 by declaring the goods as 'assorted printed books' at 'NIL....
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....ish Chadha 26.02.2009 (i) that the consignments cleared in the name of M/s M.M. Enterprises belonged to them (he and his father) (ii) that for the purpose of clearance of import consignments through ICD, TKD, they had reached an agreement with Shri Ajay Sagar to clear each container on cash payment of Rs. 3.50 lakhs plus shipping charges, and that Shri Ajay Sagar in association with his brother Shri Vijay Sagar and others, would get the documents remade showing the goods as books and would also get IGMs amended to that effect (iii) that he was well aware of this mischief and indulged in the said activity so as to save Customs duty and fine and penalty leviable on such imports (iv) that prior to imposition of restriction on imports of worn clothing, they had been importing goods in the name of their own firms namely M/s Jug Vijay Enterprises and M/s Chadha Sons Enterprises, but subsequent to imposition of restriction on such imports they started importing goods in the name of M/s M.M. Enterprises and others and in this way they had imported goods in the name of some 25-30 companies (v) that he destroyed faxes and emails relating to imports made by them (vi) that he direct....
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....are concerned, I find though the Hon'ble Court was aware yet they were sent to judicial custody. Further each of the Noticees who retracted their first statements had subscribed to the truthfulness in their further statements. The further statements recorded remain un-retracted. The Notices after admitting guilt have also paid part amount of duty, which shows their complicity. 56.5.2 I do not find any merit in such retraction and reject them as an afterthought and legal tutoring to avoid the clutches of law." xxx xxx xxx "80. Discussions on defense submitted by Shri Ajay Sagar (Noticee No. 29) A.1 He submitted that the statements recorded under Section 108 were retracted by Jitender Singh, Gaurav Gupta and Vijay Sagar at the first instance when they were produced before the Duty Magistrate in Patiala House. 2. The initial statements recorded were retracted. There is nothing on record to suggest that subsequent statements were retracted also. The detail discussions have been made at Para 56 above. The evidences put forth by the department have been discussed in Para 54 to 62 above. For brevity it is not discussed here. B.1 They further submitted that the G-Card issue....