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TMI Blog2021 (9) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... ng counsel for Customs, appearing for respondent Nos.3 & 4. On 30.06.2021, this Court had passed the following order: " Heard Mr. G. Shivadass, learned Senior Counsel assisted by Mr. P. Bhaskar, learned counsel for the petitioner. Also heard Ms. Alekhya, learned counsel representing Mr. N. Harinath, learned Assistant Solicitor General of India, appearing for respondents No.1 and 2, and Mr. Suresh Kumar Routhu, learned Senior Standing Counsel for Customs appearing for respondents No.3 and 4. By this writ petition, the petitioner challenges Regulation 5(2) & 6(1)(o) of the Handling of Cargo in Customs Areas Regulations, 2009 (for short, 'the Regulations'), as ultra vires the Customs Act, 1962 (for short, 'the Act'). Challenge is also mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showcause notice dated 05.02.2020 issued under Regulation 12(1) of the Regulations. The petitioner pleads that it was given a custodian order under Section 45(1) of the Act by an order dated 18.06.2003 of the Commissioner of Customs, Visakhapatnam. Drawing attention of the Court to a letter dated 04.10.2004 of the Commissioner of Customs, Visakhapatnam, it is contended by Mr. G. Shivadass, learned Senior Counsel, that the said letter states that the petitioner was not being asked for cost recovery charges and that by the said letter, the Commissioner had also sought the views of the Central Board of Excise and Customs, as was known then, on the subject. Much later, the Commissioner of Customs had taken a different view and accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India in the Ministry of Finance. 6(1)(o) of the Regulations is also on similar lines, Mr. G. Shivadass contends. It is further submitted by Mr. G. Shivadass that a single Bench of the composite High Court at Hyderabad had struck down Section 5(2) of the Regulations as ultra vires and an appeal is pending consideration. He has also submitted that the Delhi High Court, in a recent judgment, however, has taken a contrary view with regard to the Regulation in question. Mr. Suresh Kumar Routhu, learned Senior Standing Counsel for Customs, submits that against the impugned order, an appeal lies under Section 129 of the Act to the Southern Bench of the Customs, Excise And Service Tax Appellate Tribunal at Hyderabad and, therefore, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thereafter, the present I.A. came to be filed by the applicant/petitioner praying for modification of the interim passed by this Court on 30.06.2021. By the order dated 30.06.2021, it was provided that as an interim measure, the impugned Order-in-Original dated 01.03.2021 passed by respondent No.3-Principal Commissioner shall remain suspended subject to the petitioner, without prejudice to its rights and contentions as advanced, deposits before the Principal Commissioner 50% of the amount of Rs. 15,88,36,561/- within a period of two months from that day. As the period of two months as indicated in the order dated 30.06.2021 was going to expire on 31.08.2021, the earlier interim order was extended till 15.09.2021 and it was observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn the attention of the Court to Section 129-E of the 1962 Act, which provides that against a decision or order referred to in clause (ii) of Section 129-A of the 1962 Act, appeal shall not be entertained unless the appellant had deposited 7.5% of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order. Mr. Chidambaram has submitted that present is not a case of duty and penalty, but it is a case of recovery of cost and, therefore, stricto sensu the provision as contained in Section 129-A (ii) of the 1962 Act may not apply. But, he submits that it is the legislative spirit and, therefore, in the attending facts and circumstances where the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposits before the Principal Commissioner 50% of the amount of Rs. 15,88,36,561/- within a period of two months from that day. In the background of the aforesaid order, though it is contended by Mr. Chidambaram that the applicant/petitioner is facing financial crunch, we are of the opinion that in the attending facts and circumstances of the case, no modification of the order dated 30.06.2021 is called for and, accordingly, the present I.A. is dismissed. However since the period for deposit of 50% of the amount demanded is going to expire today, in order not to cause any prejudice to the applicant/petitioner, we provide that the aforesaid amount may be deposited on or before 27.09.2021. At this stage, Mr. N. Harinath submits that he is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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