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TMI Blog2023 (8) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... portioned on individual basis, for the simple reason that the learned Commissioner was conscious of the factual position and has consciously levied the liability as jointly and severally. From the impugned conclusion, it can be seen that the Commissioner while imposing penalty under section 114AA of the Customs Act has imposed the same individually on each of the parties in the tabulated form. In imposing the liability jointly and severally the intention is manifest that all the parties are equally responsible for paying the full duty and penalty. In the event anyone of them fails to pay off, the others become responsible for the share of that person. The ultimate intention in holding the parties jointly and severally liable is to protect the interest of the Revenue, particularly in view of the peculiar facts. If the appellant wants to avail the remedy of filing the statutory appeal, it is mandatory to comply with the conditions specified under Section 129E of the Customs Act, i.e. to make pre-deposit of 7.5% of the duty and penalty in dispute. It is a settled principle of law as held in catena of decisions, a right of appeal is a statutory right and if the party wants to avail the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icees. The relevant conclusion in so far as the appellant is concerned is quoted below:- "(D) IN RESPECT OF M/S OM SALES CORPORATION, M/S A.P. ENTERPRISES, M/S S. K. IMPEX, M/S SATNAM INTERNATIONAL, M/S M.M. ENTERPRISES, M/S NAGI INTERNATIONAL, M/S SHIVALIK INTERNATIONAL AND SH. MOHIT CHADHA ARE JOINTLY AND SEVERALLY (i) The classification of the goods under heading No. 49019900 of the Customs Tariff in bills of entry detailed in Annexure-XV, is rejected and ordered to be re-classified in their appropriate headings, as proposed in the SCN. (ii) The value declared in bills of entry detailed in Annexure-XV, is rejected in terms of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. (iii) The goods imported vide Bills of entry detailed in Annexure -XV, having total declared value of Rs. 38,37,419/-, is re-assessed at Rs. 10,94,95,895/- (Rupees Ten crores, ninety four lacs, ninety five thousand, eight hundred and ninety five only), in terms of Section 14 of the Customs Act, 1962 read with relevant rules under CVR 1988/CVR 2007. (iv) The Customs duty of Rs. 3,22,64,713/- (Rupees three crore, twenty two lacs sixty four thousand, seven hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel, time was granted to enable the appellant to make the pre-deposit. The appellant then changed the Counsel and therefore on 07.02.2023, the learned Counsel for the appellant sought time. On the next date of hearing on 13.03.2023, the learned Counsel took another plea and sought for further time. The order dated 13.03.2023 is quoted below: "Learned counsel for the appellant submits that the duty and some portion of the penalty in the impugned order have been imposed jointly and severally. He seeks time to obtain a clarification from the adjudicating authority as to what portion of the liability is upon the appellant so that the appropriate amount of pre-deposit can be calculated and made. List on April 26, 2023." 7. Just two days before the next date on 24.04.2023, the learned Counsel for the appellant submitted a representation before the Principal Commissioner of Customs seeking clarification of the phrase 'jointly and severally' in the order in original dated 27.05.2022 as to whether each individual has to make pre-deposit on the whole amount of duty and penalty which would then result in multiplicity of the pre-deposit under section 129E of the Customs Act. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther necessary action. This issues with the approval of Pr. Commissioner of Customs, Import, ICD, TKD, New Delhi. Sd/- Assistant Commissioner (Adjudication)" From the earlier orders passed in the present appeal, it is evident that the appellant has been adopting delaying tactics to avoid the requirement of making pre-deposit for availing the statutory right of challenging the impugned order. This is nothing but an abuse of the process of law. The malicious conduct of the appellant is a sufficient reason for rejecting his submissions. 8. The submissions made by the learned Counsel for the appellant for fixing the individual liability of the customs duty and the penalty imposed under the impugned order for the purpose of making the pre-deposit so that the present appeal can be entertained is devoid of merits. We find from the impugned order that the learned Commissioner has fixed the liability towards customs duty and the penalty under Section 114A of the Customs Act jointly and severally, which in simple and plain words imply that the liability to pay the duty and penalty is imposed on all the noticees jointly and in the event anyone of the noticees chooses to avail the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014.". 10. It is a settled principle of law as held in catena of decisions, a right of appeal is a statutory right and if the party wants to avail the remedy by way of appeal under the statute, it is incumbent upon him to comply with the conditions specified therein. The appellant cannot take shelter that the pre-deposit amount should be calculated on the basis of his individual liability to pay the duty and penalty under the impugned order. The concept of joint and several liability extends to the payment of entire duty and penalty amount on all the parties. The apprehension of the appellant that it would result in multiple deposits of nearly eight times of the pre-deposit to be made under Section 129E is not sustainable, for the simple reason that once a pre-deposit has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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