2013 (6) TMI 326 - HC - Customs

Requirement of pre-deposit - Confiscation - misdeclaration - import of ball bearing - alleged that petitioner has imported finished goods whereas in the bill of entry petitioner had declared incomplete goods - Section 129E of the Customs Act - held that - pre-deposit of the duty and penalty would be required to maintain the appeal when goods in question are not in the custody of the revenue. In the present case admittedly goods were seized by the department and are in the custody of the department therefore pre-deposit of the duty and penalty imposed to maintain the appeal is not at all required. Tribunal was not well within its jurisdiction while dismissing the stay application in view of the fact that entire goods seized are in the custody of the department. Since petitioner is not in custody of the goods therefore asking him to deposit huge duty and penalty to maintain appeal would cause great hardship to the petitioner. Therefore impugned order cannot be sustained in the eyes of law. - decided in favor of assessee.

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal dismissing application for exemption to deposit duty for appeal.

Analysis:
The petitioners challenged an order by the Customs, Excise & Service Tax Appellate Tribunal dated 16-11-2009, which dismissed their application seeking exemption from depositing duty to maintain their appeal. The case involved the import of 8 consignments of ball bearings with customs duty amounting to Rs. 3.84 crore. The Customs Department detained one consignment, seized goods from the factory premises and godown, and issued a show-cause notice leading to an order confiscating goods and imposing a penalty on 29-8-2005. The Tribunal initially dismissed the application under Section 129E of the Customs Act on 10-2-2006, requiring the petitioners to deposit a significant amount. Despite subsequent attempts for modification and appeals, the Tribunal continued to dismiss the stay application, leading to the present challenge.

The primary argument presented by the petitioners was that pre-deposit of duty and penalty should not be required if the seized goods are in the custody of the department, citing Section 129E of the Customs Act. On the other hand, the revenue contended that the value of the seized goods might have diminished over time, making recovery of duty and penalty unlikely even if the goods were sold. The Court examined Section 129E of the Customs Act, which mandates depositing duty, interest, or penalty pending appeal unless undue hardship is demonstrated. The Court noted that since the goods were seized and in the custody of the department, pre-deposit of duty and penalty was unnecessary in this case.

Referring to a previous Supreme Court judgment in the case of Bhavya Apparels, the Court emphasized that Section 129E of the Act applies when goods are not in the custody of the Revenue. The Court highlighted that the Tribunal should have considered the fact that the seized goods were in the custody of the department before dismissing the stay application. Considering the hardship that would be caused to the petitioners by requiring a substantial deposit, the Court concluded that the Tribunal's decision was not within its jurisdiction. Consequently, the Court allowed the petition, set aside the impugned order, and directed the Customs, Excise & Service Tax Appellate Tribunal to hear the appeal on merit without insisting on any pre-deposit, given that the goods were under the control of the department, deviating from the usual requirement in cases where goods are not in the department's control.