Manjeet Singh Vs Union of India (Bombay High Court)
Bombay High Court held that section 129E of the Customs Act was amended on 1st October 2014 incorporating mandatory requirement of pre-deposit is constitutionally valid and cannot be held to be unreasonable, onerous, unfair or discriminatory.
Facts-
Respondents on the basis of intelligence inputs, intercepted a container destined for ICD, Dhannad, Madhya Pradesh in the name of M/s Topper Milk (India) Pvt Ltd. Indore with the manifest mentioning the goods as “footwear and fabric”. On examination, it was found to contain Electroshock battons, Knuckle dusters and suspected counterfeit personal care products. The goods were, therefore, confiscated. Further investigations were carried out and, to cut the matter short, petitioner was found to be involved. Petitioner is contesting the findings that petitioner was involved or was the master mind.
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.
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 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.
Conclusion-
In Haresh Nagindas Vora Vs. Union of India this court held that Section 129E of the Act was amended on 1st October 2014 and the mandatory requirement of pre-deposit incorporated in the Section and powers and discretion conferred with appellate authority to waive / dispense with the pre-deposit was taken away. The amendment was to curtail substantial time expended on adjudication of waiver / dispensation applications. The court held that the Parliament had 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 and it certainly cannot be held to be unreasonable, onerous, unfair or discriminatory. In fact, court upheld the constitutional validity of the amended Section 129E.
Held that in our view, petitioner should approach the CESTAT by filing an Appeal under Section 129 E of the Act since there are various disputed questions of facts involved that requires to be considered. Further, as pointed out by Mr. Jetly, petitioner’s statements have been recorded under Section 108 of the Act, where petitioner has admitted his role and none of those statements are retracted.
