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2023 (5) TMI 23 - HC - CustomsStay of pre-deposit - Constitutional vires of Section 129E of the Customs Act, 1962 - seeking a direction to Respondents to admit the Appeal filed by the Petitioners without pre-deposit of the mandatory duty as stipulated in Section 129E of the Act - HELD THAT - A Coordinate Bench of this Court in Pioneer Corporation case 2016 (6) TMI 437 - DELHI HIGH COURT , where the Court, while discussing the amendment made to Section 35F of the Central Excise Act, 1944 CE Act ( which Section is pari materia to Section 129E of the Act and also requires a pre-deposit in the case of an Appeal), held that prior to the amendment of Section 35F of the CE Act, a discretion was available to the Central Excise and Service Tax Appellate Tribunal CESTAT to consider financial hardship and accordingly determine the pre-deposit amount post the amendment, a direction of waiver of the pre-deposit would be contrary to the express legislative intent of the amendment. However, it further held that the jurisdiction of the High Court under Article 226 cannot be taken away and that such power should be used only in rare and deserving cases where a clear justification is made out for such interference. The Coordinate Benches of this Court in Narender Yadav case 2019 (1) TMI 1542 - DELHI HIGH COURT and Shubh Impex case 2019 (6) TMI 29 - DELHI HIGH COURT , both of which, while dealing with the amended provision of Section 129E of the Act, have permitted waiver of the mandatory pre-deposit as is envisaged in the said provision but, in exceptional circumstances. In Nimbus Communications case 2016 (8) TMI 451 - BOMBAY HIGH COURT , a Coordinate Bench of the Bombay High Court has upheld the requirement of mandatory pre-deposit in the case of an Appeal filed after 06.08.2014, while discussing Section 35F of the CE Act. The issue that arose before the Court was whether the law as applicable on the date of commencement of the lis or on the date of filing of the appeal would govern the dispute. The case was disposed of by consent of the parties holding that the amended provisions would not apply to those appeals and applications which were pending prior to 06.08.2014, regardless of the date of commencement of the lis. Thus an analysis of the conspectus of law gives a clear understanding that after passing of the Amendment Act on 06.08.2014, the amended Section 129E of the Act and also Section 35F of the CE Act shall be applicable in those cases where the Appeal has been filed after 06.08.2014 - the Coordinate Benches of this Court have exercised and, thus, preserved the power as available under Article 226 of Constitution of India, 1950 to either waive the pre-deposit condition or to grant the right to appeal subject to a part deposit or security. The power, albeit, has been exercised only in rare and exceptional cases. Valuation and Prices - HELD THAT - The price and valuation of Agarwood Chips and Agarwood Oil varies hugely depending on its grade and variety - the prices relied upon by the Petitioners are not the same as those stated in the Agarwood Policy. These are also very different from the valuation relied upon by Respondent No. 1 and 2 to impose the penalty under the Act. The provisional valuation appears to be taken verbatim from the Panchnama and the seizure memos dated 20.09.2019. The SCN adopts the same valuation for the goods seized and the OIO only reproduces this valuation - The valuation of the goods seized, is also not in terms of the prices as set forth in the Government of Assam s Agarwood Policy. No proper calculation has been made for the penalty levied. The penalty imposed on the Petitioners has been imposed based on a provisional valuation. The penalty imposed is therefore without any legal basis and cannot be sustained. Admittedly, the Petitioners are poor daily wage earners who are unable to make a challenge to the seizure and confiscation on account of the penalty imposed on them. The aforegoing discussion on the prices and valuation of Agarwood Chips and Agarwood Oil suggest, albeit, prima facie, that no proper valuation of the goods seized was carried out by the Respondents. Therefore, given the financial position and the wherewithal of the Petitioners, an opportunity needs to be given to them to contest the valuation so imposed by the Respondents, which, otherwise cannot be contested by them. Thus, we consider the case of the Petitioners to be an appropriate case to exercise our discretion in the matter concerning waiver of pre-deposit of penalty. Respondent No. 1 is directed to decide the Appeals preferred by the Petitioners on merits, without insisting on the requirement of pre-deposit - Petition allowed.
Issues Involved:
1. Constitutional validity of Section 129E of the Customs Act, 1962. 2. Whether the Petitioners can be exempted from the mandatory pre-deposit requirement under Section 129E due to financial hardship. 3. Correctness of the valuation of Agarwood Chips and Agarwood Oil by Customs Authorities. Summary: Issue 1: Constitutional Validity of Section 129E of the Customs Act, 1962 The Petitioners challenged the constitutional vires of Section 129E of the Customs Act, 1962. However, the Supreme Court in Chandra Sekhar Jha V. Union of India & Anr. 2022 SCC OnLine SC 269 upheld the validity of this provision. Consequently, the Court did not further address this issue. Issue 2: Exemption from Mandatory Pre-Deposit Requirement The Petitioners, daily wage earners from poor families, argued that they could not afford the mandatory pre-deposit under Section 129E to file an appeal. The Court directed the District Magistrate, Hojai, Assam, to verify the Petitioners' financial status. The report confirmed their poor financial condition. The Court noted that while Section 129E mandates a pre-deposit, it has the discretion under Article 226 of the Constitution to waive this requirement in rare and deserving cases. Citing precedents, the Court found that the Petitioners' financial hardship justified waiving the pre-deposit requirement to allow them to contest the valuation imposed by the Respondents. Issue 3: Valuation of Agarwood Chips and Agarwood Oil The Petitioners contended that the seized Agarwood Chips and Agarwood Oil were wrongly valued by the Customs Authorities. The Respondents valued the goods at Rs. 5,00,000/- per Kg for Agarwood Chips and Rs. 8,00,000/- per Kg for Agarwood Oil based on a "provisional international market value." However, the Court found that this valuation was based on preliminary reports and lacked proper assessment. The Court noted discrepancies in the valuation and the penalty imposed on the Petitioners, which was not in line with the Assam Agarwood Promotion Policy 2020. The Court concluded that the penalty imposed was without legal basis and could not be sustained. Conclusion: The Court allowed the Writ Petition, directing Respondent No. 1 to decide the Appeals on merits without insisting on the pre-deposit requirement. The Petitioners were given six weeks to file their Appeals, which should be considered without dismissal on the ground of limitation. The Petition and pending Application were closed without any orders as to costs.
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