2019 (6) TMI 1336 - HC - Customs

Maintainability of appeal - waiver of pre-deposit stipulated in Section 129E of the Customs Act, 1962 - grievance of the Petitioner is that the order of the Additional Commissioner dated 6th September, 2018 contains error apparent on record, which has lead to imposition of a penalty much higher then what, according to the Petitioner, can be imposed in law - HELD THAT - It is a settled position that a right of appeal is a statute given right and in the absence of statute providing for the same, there is no natural or fundamental right to file an appeal before the Appellate Authorities under the Act. This right of appeal can always be bestowed subject to such conditions, as are thought fit by the legislature. The Act provides that any party aggrieved by an order of Officer of the Customs below the rank of Commissioner of Customs, is entitled to file appeal under Section 128 of the Act to the Commissioner of Customs (Appeals). However, this right of appeal is not unconditional. It is circumscribed by the requirement of the party, seeking to appeal making necessary pre-deposit of 7.5% of the duty and penalty which has been confirmed by the lower authority. This deposit has to be made under Section 129E of the Act. The dismissal of this Petition will not preclude the Petitioner from adopting any other remedy available to it under the Act, if permissible, such as rectification application in terms of Section 154 of the Act - petition dismissed.

Summary

Issues:
1. Whether the Petitioner's appeal under Section 128 can be entertained by the Commissioner of Customs (Appeal) without complying with the pre-deposit requirement of Section 129E of the Customs Act, 1962?

Analysis:
The Petitioner sought direction from the High Court to compel the Commissioner of Customs (Appeal) to admit their appeal under Section 128 without insisting on the pre-deposit stipulated in Section 129E of the Act. The Petitioner contended that the penalty imposed was higher than what the law allows, but due to the pre-deposit requirement, they were unable to challenge the order before the Commissioner of Customs (Appeal). The Court acknowledged that the right of appeal is a statutory right and not a fundamental one. The Act allows appeals under Section 128, but this right is subject to conditions set by the legislature, including the pre-deposit requirement of 7.5% of the duty and penalty confirmed by the lower authority, as mandated by Section 129E.

The Court cited previous judgments to support the reasonableness of the pre-deposit provision, highlighting that the constitutional validity of Section 129E had been upheld in earlier cases. The Court refused to direct the statutory authority to ignore the Act's requirements for entertaining the appeal, emphasizing that the Petition did not challenge the constitutionality of Section 129E. Consequently, the Court declined to entertain the Petition, upholding the statutory pre-deposit requirement for filing appeals under Section 128.

While dismissing the Petition, the Court clarified that the dismissal did not prevent the Petitioner from exploring other remedies available under the Act, such as filing a rectification application under Section 154. Any such application would be considered by the relevant authority in accordance with the law. The Court reiterated its decision to decline entertaining the Petition but left open the possibility for the Petitioner to pursue alternative remedies within the framework of the Act.

In conclusion, the Court dismissed the Petition, maintaining the requirement of pre-deposit under Section 129E for appeals under Section 128, while also indicating the availability of other remedies like rectification applications under the Act.