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TMI Blog2022 (10) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... d or was the master mind. 3. It is respondents' case that petitioner used 16 Importer Exporter Code (IEC's) to import goods (189 consignments in the past and 19 live consignments). Investigation, according to respondents, established that out of the 16 IEC's, 12 IEC's were found to be non-existent, whereas, 4 IEC holders have stated that they have never provided any services to petitioner or his associates to import any consignment. There is also a finding in the impugned order that no payment by way of outward remittances were made for the goods covered by these IEC holders of any of the consignments imported. 4. Petition as originally filed was only to waive the mandatory condition of pre-deposit of 7.5% of penalty as required under Section 129E of the Act and direct Customs Excise Service Tax Appellate Tribunal (CESTAT) to hear the appeal of petitioner on merits without pre-deposit. Subsequently, on liberty granted by the court, petitioner amended the petition to seek quashing of the impugned order dated 30th July 2019 passed by respondent no.3. 5. In Haresh Nagindas Vora Vs. Union of India 2017 (353) E.L.T. 154 (BOM) this court held that Section 129E of the Act was amended o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities to devote the same to important issues. Considering these hard realties and to have a expeditious disposal of the statutory appeals which undoubtedly is a necessary requirement of effective trade, commerce and business, the Parliament in its wisdom amended the provisions of Section 129E of providing deposit of 7.5% and 10% respectively as subclauses (i), (ii) and (iii) respectively provide. If such is the aim and insight behind the provision, it certainly cannot be held to be unreasonable, onerous, unfair or discriminatory for two fold reasons. Firstly, the object of a public policy sought to be achieved by the amendment, namely speedy disposal of the appeals before the appellate authorities is a laudable object and cannot be overlooked, so as to label the provision as unreasonable and onerous and violative of Article 14 of the Constitution. Secondly that the amount which is required to be deposited is not unreasonable from what the earlier (pre amended) regime provided. 12. The contention of the petitioner that the provision is rendered discriminatory as it creates two different classes when it mandates pre-deposit of duty demanded or penalty imposed or both, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mencement of the lis would apply or the amended provisions as on the date of filing of appeal would apply. Though the Court was not dealing with the validity of the provision, the Court considering the provisions of law and considering the decision of the Madras High Court in "M/s.Dream Castle Vs. Union of India & Ors." (2016 (43) STR 25 (Mad)) and the Allahabad High Court in the case "Ganesh Yadav Vs. Union of India" (2015 (320) ELT 711 (All)) held that Section 35F of the Central Excise Act did not defeat or render the vested right of appeal illusory and that the condition of pre-deposit is a reasonable condition and such condition did not defeat the vested right of appeal. The Court accordingly confirmed the order of the Tribunal directing the appellants therein to deposit the sum mandated by Section 35F(1) of the Central Excise Act. 14. As regards the contention of the petitioners relying on the decision of the Supreme Court in Mardia Chemicals Ltd. Vs. Union of India (supra) that the condition of deposit of 75% was held to be invalid and therefore, Section 129E of the Act also is required to be held to be invalid, cannot be accepted. The submission in the present context is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraphs 9 and 10 considered this larger challenge and after referring to the judgments, some of which have been relied upon by Mr. Dada, held as under : "17. Thus, the principle of law which emerges is that the right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as on and from the date on which the lis commences although it may actually be exercised when the adverse judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 18. Justice G.P. Singh in his treatise on Statutory Interpretation has succintly elucidated the principles to be applied in determining whether a statute is retrospective or not, in the following words: "(ii) Statutes dealing with substantive rights.- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act, 2014. The second proviso is a clear indicator that Parliament has exempted the requirement of complying with the predeposit as mandated by Section 35F (1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act, 2014. Consequently, both by virtue of the opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 August 2014 shall be governed by the requirement of pre-deposit as stipulated therein. The only category to which the provision will not apply that would be those where the appeals or, as the case may be, stay applications were pending before the appellate authority prior to the commencement of Finance (No.2) Act, 2014." 21. Having perused this judgment of the Division Bench and its reasoning, we are clear that section 35F cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the adjudicating authority has observed that since dummy IEC's being used for import of all 208 consignments (189 in the past and 19 live consignments), IEC holders had not remitted any consideration for the goods imported in the past or present, no banking transactions have taken place for import of such huge quantity of goods, no amount has been remitted to suppliers through banking channel and no record is maintained or available in respect of the consignments imported. It was also submitted by Mr. Jetly that the adjudicating authority has further observed Section 7 of the FTDR Act, read with Rule 12 of the FTDR Rules, stipulates that every person shall make import only with IEC number allotted to him. Section 11 of the FTDR Act, provides that no export or import shall be made except in accordance with the provisions of the FDR Act, or FTDR Rules. Rule 11 of the FTDR Rules, provides that on importation, the owner of such goods shall, in the bills of entry or any other document prescribed under the said Act, state the value, quality, description of such goods to the best of his knowledge and belief and shall subscribe a declaration of the truth of such statement at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" in Section 111(d) of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues." (Emphasis supplied) 12. Mr. Jetly also relied upon judgment of the Delhi High Court in Commissioner of Customs & Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that therefore, the goods were prohibited goods and that the adjudicating authority could have imposed penalty upto to Rs.185 crores, but has imposed penalty only of Rs.100 crores on petitioner with regard to Section 112 of the Act and Rs.25 crores under Section 114AA of the Act. 14. On the submissions of personal hearing not being granted, Mr. Jetly submitted that petitioner did not even file a reply to the show cause notice and, therefore, petitioner could not have asked for cross-examination of any person. Mr. Tripathi submitted that petitioner addressed 5 communications seeking cross-examination. In our view, even if petitioner would have addressed any number of communications, it would have made no difference. Petitioner should have first replied to the show cause notice, which has admittedly not been done. In the facts of the present case, and given petitioner's conduct in refusing to even file a reply despite the grant of ample opportunity, we feel that the contention of breach of natural justice as urged by Mr. Tripathi is entirely devoid of merit and without substance. We find that the same has been urged only in an attempt to invoke the jurisdiction of this court u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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