Case Law Details
Guduru Chandra Sekhar Vs Union of India (Andhra Pradesh High Court)
In the instant case, though the petitioner herein initially filed appeal on 17.08.2020, before the Commissioner Of Customs and Central Tax (Appeals), 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 tCommissioner Of Customs and Central Tax (Appeals)-appellate authority, by way of the order, dated 3. 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. It is also significant to note in this context that, vide notification, dated 30.09.2020, the Government of India prescribed 31st day of December, 2020 as the end date for the purpose of time limit. It is also pertinent to note in this context that the Hon’ble Apex Court, vide order, dated 08.03.2021, in Suo motu Writ Petition (Civil) No.03 of 2020, ordered exclusion of the time between 15.03.2020 to 14.03.2021 from the computation of limitation period.
As observed supra, on the earlier occasion, when the petitioner herein approached the Commissioner Of Customs and Central Tax (Appeals)-appellate authority, obviously without complying with the mandatory requirement as stipulated under Section 129-E of the Act, the Commissioner Of Customs and Central Tax (Appeals) refused to entertain the appeal and the said order, by any stretch of imagination, cannot be faulted. It is also to be noted that the said order was not passed on merits of the matter but only on the sole ground of failure on the part of the petitioner to comply with the requirement of pre-deposit. Admittedly, once again, on 03.12.2020, after scrupulously adhering to the mandatory requirement of pre-deposit, petitioner herein submitted the appeal once again, but the Commissioner Of Customs and Central Tax (Appeals) herein, vide the impugned letter, declined to admit the said appeal on the ground that the petitioner herein would not be entitled under the Government Orders to file appeals repeatedly. In the considered opinion of this Court, 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 Commissioner Of Customs and Central Tax (Appeals) 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.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
A letter bearing A.No.111/2020 (V) CUS, dated 31.12.2020, of the Principal Commissioner of GST & Customs (Appeals)-third respondent herein, refusing to admit the appeal preferred by the petitioner herein, is under challenge in the present Writ Petition.
2. Heard Sri P.Rosi Reddy, learned counsel for the petitioner, and Sri Suresh Kumar Routhu, learned Special Standing Counsel for Customs and Central Excise, apart from perusing the entire material available on record.
3. The facts and circumstances leading to filing of the present Writ Petition are as infra:
The Additional Director, office of the Directorate of Revenue Intelligence, Hyderabad Zonal Unit-fifth respondent herein issued a show cause notice bearing F.No.DRI/ HZU/VJRU/48/ENQ-05(INT-04)/2018/1354, dated 20.08.2018, under Section 124 of the Customs Act, 1962 (for brevity, ‘the Act’). In response to the said show cause notice, petitioner herein submitted his reply/objections on 10.12.2018.
Thereafter, the Adjudicating Authority/Additional Commissioner-fourth respondent herein passed an order vide C.No. VIII/10/147/2018-Adjn, dated 29.05.2020, and the operative portion of the said order reads as follows:
i. I order for absolute confiscation of twelve gold bars, totally weighing 3000 grams and totally valued at Rs.94,34,000/- (rupees Ninety four lakhs thirty four thousand only) seized from Sri Guduru Chandra Sekhar, in terms of Section 111(d), (i) and (1) of the Customs Act, 1962.
ii. I order for confiscation of Indian currency worth Rs.4,75,000/- (Rupees four lakhs seventy five thousand only) seized from Sri Guduru Chandra Sekhar, in terms of Section 121 of the Customs Act, 1962.
iii. I order for confiscation of Foreign currency of 137 Crores of Qatar Riyals of 10 denomination, 34 notes of Qatar Riyals of 5 denomination, 163 notes of Qatar Riyals of 1 denomination, 17 notes of Kuwait Dinar of 5 denomination, 3 notes of Bahram Dinar of 20 denomination and 1 note of Bahrain Dinar of 10 denomination and 1 note of Bahrain Dinar of 5 denomination totally worth in Indian rupees Rs.62,012.76/- (Rupees Sixty two thousand twelve & seventy six paise only) eized from Sri Guduru Chandra Sekhar, in terms of Section 113 (d) of the Customs Act, 1962 read with Section 11 (H) of the Act, ibid and Section 11 of Foreign Trade Development Regulation Act, 1992 as well as the Foreign Exchange Management (Export & Import of currency) Regulation, 2000.
iv. I also order for confiscation of packing material used for concealment of the seized gold, Indian and Foreign Current under Section 118 and Section 119 of the Customs Act, 1962.
v. I impose a penalty of Rs.25,00,000/- (rupees twenty five lakhs only) under Section 112 (b)(i) of the Customs Act, 1962 and Sri Guduru Chandra Sekhar for the offences, as discussed above.
vi. I impose a penalty of Rs.62,013/- (rupees sixty two thousand and thirteen only) under Section 114 (1) of the Customs Act, 1962 on Sri Guduru Chandra Sekhar for the offences, as discussed above.
4. Aggrieved by the said order of the Adjudicating Authority, petitioner herein filed a Statutory Appeal, initially on 17. 08.2020, before the Commissioner of Customs and Central Excise (Appeals) Chennai, under Section 128 (1) of the Act in Form-CAI at Col.No.7. He undertook to pay mandatory pre-deposit of 7.5% of the disputed amount of penalty. The Commissioner of Customs and Central Excise (Appeals)-third respondent herein vide order in Appeal No.13/2020 (V) Cus, dated 03.11.2020, rejected to entertain the said appeal in limini on the ground of non-compliance of the provisions of Section 129-E of the Act.
5. Subsequently, on 03.12.2020, once again the petitioner herein, by invoking the provisions of Section 128 of the Act, preferred an appeal, enclosing proof of payment of pre-deposit as per Section 129 of the Act. Now, by way of a letter, dated 31. 12.2020, the office of the Principal Commissioner of GST and Customs (Appeals) declined to admit the appeal on the ground that the Government extended the time to file appeal but not to file appeal repeatedly before the same forum.
6. In the above background, the present Writ Petition is filed challenging the validity and the legal sustainability of the said action on part of the office of the third respondent in declining to entertain the appeal filed by the petitioner.
7. A counter-affidavit has been filed by the respondents, specifically taking the objection as to the maintainability of the appeal, dated 03.12.2020, preferred by the petitioner.
8. According to the learned counsel for the petitioner, the reason assigned by the office of the third respondent in declining to admit the appeal is highly arbitrary, illegal and opposed to the very spirit and object of the provisions of the Act in general and Sections 128 and 129 of the Act in particular. It is the further submission of the learned counsel that, since the earlier Memo of Appeal, dated 03.11.2020, was rejected not on merits but only on the sole ground of non-compliance of the provisions of Section 129-E of the Act, the third respondent herein grossly erred in refusing to admit the appeal filed by the petitioner herein. It is the further submission of the learned counsel that, in view of the notification, dated 30.09.2020, issued by the Government of India, Ministry of Finance, petitioner herein had the time till 31.12.2020 to prefer the appeal, as such, the impugned letter cannot be sustained in the eye of law. It is also the submission of the learned counsel that the petitioner herein is also entitled for the benefit of exclusion of the period of limitation in terms of the order, dated 08.03.2021, of the Hon’ble Apex Court in Suo motu Writ Petition (Civil) No.3 of 2020.
9. On the other hand, emphatically, opposing the very filing of the present Writ Petition and the contentions raised therein, Sri Suresh Kumar Routhu, learned Senior Standing Counsel for Customs and Central Excise, strenuously contends that, in view of the order passed by the Commissioner of Appeals on 3. 11.2020, declining to entertain the appeal on the ground of failure on the part of the petitioner to comply with the mandatory requirement of pre-deposit, as stipulated under Section 129-E of the Act, the Commissioner of Appeals-third respondent herein is perfectly justified in refusing to admit the appeal for the second time. In elaboration, it is further contended by the learned counsel that, in the event of the petitioner being aggrieved by the order of the third respondent, the only option available to the petitioner herein is to file a Statutory Appeal before the CESTAT, challenging the orders passed by the third respondent on 03.11.2020. In this context, it may be appropriate to refer to the provisions of Sections 128 and 129 of the Act.
10. Section 128 of the Act enables any person aggrieved by any decision or 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). Section 129-E of the Act, which came to be inserted by virtue of Act 25/2014 with effect from 06.08.2014, mandates, in clear and unequivocal terms, that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant deposits 7.5% of the duty.
11. 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 3. 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. It is also significant to note in this context that, vide notification, dated 30.09.2020, the Government of India prescribed 31st day of December, 2020 as the end date for the purpose of time limit. It is also pertinent to note in this context that the Hon’ble Apex Court, vide order, dated 08.03.2021, in Suo motu Writ Petition (Civil) No.03 of 2020, ordered exclusion of the time between 15.03.2020 to 14.03.2021 from the computation of limitation period.
12. As observed supra, on the earlier occasion, when the petitioner herein approached the third respondent-appellate authority, obviously without complying with the mandatory requirement as stipulated under Section 129-E of the Act, the third respondent refused to entertain the appeal and the said order, by any stretch of imagination, cannot be faulted. It is also to be noted that the said order was not passed on merits of the matter but only on the sole ground of failure on the part of the petitioner to comply with the requirement of pre-deposit. Admittedly, once again, on 03.12.2020, after scrupulously adhering to the mandatory requirement of pre-deposit, petitioner herein submitted the appeal once again, but the third respondent herein, vide the impugned letter, declined to admit the said appeal on the ground that the petitioner herein would not be entitled under the Government Orders to file appeals repeatedly. In the considered opinion of this Court, 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.
13. For the aforesaid reasons, Writ Petition is allowed, setting aside the order passed by the Principal Commissioner of GST & Customs (Appeals)-third respondent herein under appeal vide letter bearing A.No.111/2020 (V) CUS, dated 31.12.2020, and 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. It is made clear that the third respondent-appellate authority shall pass orders, strictly in accordance with law. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, pending if any, in the Writ Petition shall stand closed.
