2013 (9) TMI 785 - HC - Customs

Non-Compliance of the provisions of Section 129E of the Act r.w. the stay order Held that - The Tribunal noted that report of the Registrar, which also reflects that the said deposit have not been made as no proof of compliance stand filed on record - After taking into consideration these factors, the Tribunal dismissed the appeals for non-compliance of with the provisions of Section 129 E of the Customs Act, 1962 read with the stay order. It was abundantly clear that it was a pre-condition to deposit the amount in respect of an appeal filed against the duty demanded or penalty levied - Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal was fully competent to reject the appeal. Violation of Principles of Natural Justice Opportunity to Cross-Examine the Witnesses Held that - The proviso to Section l29E of the Act gives discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce - It was a discretion vested in an obligation to act judicially and properly - In the facts and circumstances of the case and all the relevant factors, namely, the probability of the prima facie case of the appellants, the conduct of the parties, have been taken into consideration by the Tribunal - The purpose of the Section was to act in terrorem to make the people comply with the provisions of law - The submission of the appellant that there was improper dismissal of the appeals and non-consideration of material and relevant facts could not be accepted Decided against Assessee.

Summary

Issues:
1. Delay in filing appeals and application for condonation of delay.
2. Interpretation of Section 129E of the Customs Act, 1962.
3. Violation of principles of natural justice in not allowing cross-examination of witnesses.

1. Delay in filing appeals and application for condonation of delay:
The judgment addresses the issue of the appellant filing two First Appeals From Order beyond the stipulated time of 180 days. The Counsel for the opposite parties did not object to condoning the delay, and the affidavit supporting the application for condonation of delay was deemed sufficient. Consequently, the applications for condonation of delay were allowed, and the delay in filing the appeals was condoned. The parties consented to proceed with the hearing of the appeals at the admission stage.

2. Interpretation of Section 129E of the Customs Act, 1962:
The appeals under consideration were related to Section 130 of the Customs Act, 1962, concerning the seizure of foreign beetle nut. The judgment delves into the provisions of Section 129E of the Act, emphasizing the requirement for depositing duty demanded or penalty levied pending an appeal. It clarifies that while the section does not explicitly mention rejection of appeals for non-deposit, it mandates the appellant to deposit the amount. Failure to comply empowers the Appellate Tribunal to reject the appeal. The Tribunal's decision to dismiss the appeals for non-compliance with Section 129E was upheld, highlighting the discretionary power granted by the proviso to the section to mitigate undue hardships.

3. Violation of principles of natural justice in not allowing cross-examination of witnesses:
The appellants contended that the Adjudicating and Appellate Authorities violated natural justice by denying them the opportunity to cross-examine witnesses. However, the Tribunal noted that despite directions for deposits to be made by specific individuals, no compliance proof was submitted. The Tribunal dismissed the appeals based on non-compliance with Section 129E and the stay order. The judgment emphasized the Tribunal's discretion under the proviso of Section 129E to consider undue hardships and the need for compliance with legal provisions.

In conclusion, the High Court dismissed both appeals, upholding the Tribunal's decision based on non-compliance with Section 129E of the Customs Act, 1962. The judgment elucidates the legal obligations regarding deposit requirements pending appeals, the discretionary powers of the Tribunal, and the importance of adherence to legal provisions to ensure compliance with the law.