2021 (5) TMI 459 - HC - Customs

Confiscation - Smuggling - Gold Bars - rejection also on the ground of non-compliance of the provisions of Section 129-E of the Act - order passed under the Act by an officer of the Customs, lower in rank than the Principal Commissioner of Customs or Commissioner of Customs, to file appeal before the Commissioner (Appeals) - HELD THAT - In the instant case, though the petitioner herein initially filed appeal on 17.08.2020, before the third respondent, it is clear from Form-CAI that the appellant undertook to pay the mandatory pre-deposit of 7.5% of the disputed amount but did not make any deposit to the said effect. Obviously, on the ground that the petitioner herein failed to comply with the above referred mandatory requirement of pre-deposit, the third respondent-appellate authority, by way of the order, dated 03.11.2020, rejected the appeal filed by the petitioner herein in limini on the sole ground of non-compliance of the provisions of Section 129-E of the Act. It is also not in controversy that once again on 03.12.2020, by complying with the said mandatory requirement, as stipulated under Section 129-E of the Act, petitioner herein preferred the appeal. The filing of appeal in the instant case would not be regarded as filing of appeals repeatedly since the earlier order came to be passed by the third respondent not on merits but only on the sole ground of failure on the part of the petitioner herein to comply with the mandatory requirement of law but not on merits. In the considered opinion of this Court, the said order, dated 03.11.2020, by any stretch of imagination, cannot be regarded as the order on merits but is only an order refusing to entertain the appeal. Therefore, the contention of the learned Senior Standing Counsel that the petitioner herein is required to be relegated to the alternative remedy of appeal to the CESTAT cannot be sustained and is, accordingly, rejected. The appeal filed by the petitioner herein on the file of the third respondent on 03.12.2020 stands restored to file for consideration of the same by the third respondent, strictly in accordance with law, on merits after giving opportunity of being heard to the petitioner before passing appropriate orders - Petition allowed.

Summary

Issues:
Challenge to refusal of appeal admission by Principal Commissioner of GST & Customs (Appeals)

Analysis:
The petitioner challenged the refusal to admit their appeal by the Principal Commissioner of GST & Customs (Appeals) in a Writ Petition before the High Court. The dispute arose from an order passed by the Adjudicating Authority confiscating gold bars, Indian and Foreign currency, and imposing penalties on the petitioner. The petitioner initially filed a Statutory Appeal before the Commissioner of Customs and Central Excise (Appeals), which was rejected for non-compliance with pre-deposit requirements. Subsequently, the petitioner refiled the appeal with proof of payment, but the Principal Commissioner refused to admit it, citing restrictions on repeated appeals before the same forum.

The High Court analyzed the provisions of the Customs Act, specifically Sections 128 and 129-E, which mandate pre-deposit requirements for entertaining appeals. The Court noted that the petitioner failed to comply with the pre-deposit requirement initially, leading to the rejection of the appeal by the Commissioner of Customs and Central Excise (Appeals). However, upon re-filing the appeal with the necessary deposit, the Principal Commissioner declined to admit it, citing restrictions on repeated appeals. The Court emphasized that the earlier rejection was based solely on non-compliance with pre-deposit requirements and not on the merits of the case.

The Court held that the refusal to admit the appeal by the Principal Commissioner based on the earlier rejection was unjustified. The Court reasoned that the subsequent filing with compliance should be considered on its merits, especially since the earlier rejection was not a decision on the merits of the case. The Court allowed the Writ Petition, setting aside the Principal Commissioner's order and restoring the appeal for consideration on its merits, emphasizing the need for a fair hearing before passing any orders. The Court rejected the argument to relegate the petitioner to an alternative remedy, emphasizing the importance of adhering to legal procedures and providing opportunities for a fair hearing.