2020 (3) TMI 277 - HC - Customs

Maintainability of appeal - non-compliance with the mandatory pre-deposit - Section 129E of the Customs Act, 1962 - Smuggling of Gold - HELD THAT - As per amended provision of Section 129-E of the Customs Act, 1962, the petitioner was required to make a pre-deposit @ 7.5% of the penalty amount i.e. ₹ 5 lacs, which has not been deposited by the petitioner. Hence, Commissioner of Customs (Appeals) has dismissed the appeal preferred by the petitioner vide order dated 30th August, 2019. The petitioner is ready and willing to make pre-deposit @ 7.5% of the penalty amount i.e. ₹ 5 lacs within a period of two days - Petitioner is directed to deposit the penalty amount @ 7.5% of the penalty amount i.e. ₹ 5 lacs within a period of one week from today, which will be accepted by the Commissioner of Customs (Appeals). The appeal preferred by the petitioner is revived with its original number.

Summary

Issues:
Challenge to order of Commissioner of Customs (Appeals) for non-deposit of penalty amount as per Section 129E of Customs Act, 1962.

Analysis:
The writ petition was filed to challenge the order of the Commissioner of Customs (Appeals) dated 30th August, 2019, which dismissed the petitioner's appeal due to non-deposit of 7.5% of the penalty amount imposed on the petitioner as per Section 129E of the Customs Act, 1962. The case involved the recovery of 996 grams of gold (125 coins) from the petitioner's possession at the Indira Gandhi International Airport, leading to a complete confiscation order dated 31st July, 2018. The petitioner, dissatisfied with the confiscation order and penalty, filed an appeal before the Commissioner of Customs (Appeals) under Section 128 of the Customs Act, 1962.

The amended provision of Section 129E required the petitioner to make a pre-deposit of 7.5% of the penalty amount, which amounted to ?5 lakhs. However, the petitioner had not made this deposit, resulting in the dismissal of the appeal by the Commissioner of Customs (Appeals). The petitioner contended that the original confiscation order was passed without granting an opportunity of being heard. Nevertheless, the petitioner expressed readiness to make the pre-deposit within two days and requested the Commissioner of Customs (Appeals) to hear the appeal on its merits.

Considering the submissions and the petitioner's willingness to make the pre-deposit within two days, the High Court allowed the writ petition, setting aside the Commissioner of Customs (Appeals)'s order dated 30th August, 2019. The petitioner was directed to deposit the penalty amount of ?5 lakhs within one week, which would be accepted by the Commissioner of Customs (Appeals). The appeal was revived with its original number, and failure to make the pre-deposit within the specified period would result in no further decision by the Commissioner of Customs (Appeals) in the appeal. The writ petition was disposed of with these directions.

Additionally, a consequential miscellaneous application was disposed of in light of the order passed in the writ petition. The court directed the issuance of a copy of the order under the signature of the Court Master.