M/S Bhatia Global Trading Ltd. Vs Commissioner of Customs

M/s Bhatia Global Trading Ltd Regd.Off: BCC House, 89/5 Manoramaganj, Navrathanbagh Main Road Indore 452 001 (MP) - by its Authorised Signatory – Pankaj Jain 30 yrs, S/o Parasmalji Jain R/a 7/4, Vichoor Muthiah Mudali Street Choolai, Chennai 600 112 (TN) Now having coming to Bangalore

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Petitioner

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(By Sri S Parthasarathi, Adv.)

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And

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1 Commissioner of Customs

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New Customs House Panambur, Mangalore 10

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2 Assistant Commissioner (Recovery) New Customs House Panabur, Mangalore 10 Respondents

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(By Sri C Shashikantha, Adv.)

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Writ Petition is filed under Art.226/227 of the Constitution praying to quash the detention notice dated 5.11.2015 – annexure H, etc.

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The Petition coming on for preliminary hearing this day, Court made the following:

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ORDER

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Mr S Parthasarathi, Adv. For Petnr. Mr C Shashikantha, Adv. For Respdts.

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1 The petitioner company has filed the present writ petition

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before this Court aggrieved by the impugned communication – Annexure F dated 12.8.2015, a communication by the Superintendent (Adjn.) on behalf of the Commissioner of Customs, Mangalore conveying to the assess petitioner that the request of the petitioner assessee for considering the deposits made by it during the course of Investigation & Audit, towards the mandatory pre-deposit under the provisions of S.129 E of the Customs Act, 1962 for maintaining the appeal was examined and he was directed by the Commissioner to

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inform the assessee that his request is not acceded to.

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2 Later on and consequently, another Assessing Authority viz.,

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Assistant Commissioner (Recovery), also issued a detention notice

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under S.142 1(a) of the Customs Act on 5.11.2015 – Annexure H on

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record, detaining and restricting the petitioner from selling of any of the goods belonging to the assessee which are under the control of the Officers of the Customs and Central Excise, all over India.

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3 The assessee filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on 18.9.2014 aggrieved by Annexure C the Adjudication Order dated 26.3.2014 and demand notice for Rs.8.31 crores served upon the assessee requiring the petitioner assessee to make a deposit of 10% / 7.5% as pre-deposit for maintaining the said appeal under S.129 E of the Customs Act. But the assessee made a representation to the respondent Commissioner of Customs, Mangalore vide Annexure E dated 4.8.2015 that a sum of Rs.1,49,59,384/- on account of various deposits made by him while the matters were under Investigation & Audit pending before the respondent authorities and a part of that amount may be treated and adjusted against the aforesaid pre-deposit requirement as per S.129 E of the Customs Act. The assessee reiterated this request before the learned Commissioner vide Annexure G dated 7.10.2015 also that a sum

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of Rs.1,20,64,490/- was lying in deposit before the Office of the Deputy Commissioner / Assistant Commissioner of Customs, Krishnapatnam himself and thus, the said respondent Commissioner should issue a certificate as requested by the petitioner assessee that a part of this deposit made with the respondent may be adjusted as pre-deposit for maintaining the said appeal under S.129 E of the Customs Act.

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4 The said representations appear to have been summarily rejected by the learned Commissioner without assigning any reason by Annexure F communicated through the Superintendent of that Office.

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The appeal of the petitioner assessee therefore, could not be entertained and heard by the CESTAT on merits and as stated at Bar, it is still lying pending without any proceedings further so far. In the aforesaid circumstances, the petitioner approached this Court seeking a direction to the Respondents to issue appropriate Certificate or communication in terms of the prayer made by the petitioner assessee to whom under the aforesaid representations that a part of the amount much larger than the pre-deposit requirement of 10% / 7.5%, as

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��

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required under S.129 E of the Customs Act, be issued so that the Tribunal may proceed to hear the appeal on merits.

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5 Learned counsel for the petitioner Mr S Parthasarathi urged that

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under the amended provisions of S.129 E of the Customs Act, 1962, substituted by Finance (No.2) Act, 2014 and which deals with the requirement of pre-deposit of certain percentage of duty demanded or penalty imposed impugned in the appeal, the CESTAT does not have any discretion to waive of or dispense with the said requirement of predeposit of 10% if the order impugned is passed under S.129 A of the Customs Act or 7.5% if the order has been passed under clause (a) under S.128-1 of the Customs Act by the lower authority and therefore, in these circumstances, since the respondent Department already had an excess amount of duty paid by the assessee subject to “Investigation

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and Audit” in the proceedings pending before the competent authorities , a part of it could be treated as adjusted against the predeposit required under the statutory provisions for maintaining the appeal, which is a substantive right of the petitioner assessee. He also submitted that the communication Annexure F dated 12.8.2015 is

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wholly a non-speaking order and the said order is not even signed by

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the learned Commissioner to whom the representations were made by

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the petitioner assessee in this regard but the same is only a communication on behalf of the Commissioner by the Superintendent conveying that the said request cannot be acceded to. However, no reasons for the same have been assigned, whereas the assessee could not be required to further pay additional sums to the Department to maintain his appeal in terms of S.129 E of the Customs Act before the CESTAT since excess amount was already lying in deposit with the respondent Department itself, of course, subject to the proceedings to be now undertaken and concluded by the competent authorities.

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6 These submissions are opposed by the learned counsel for

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Revenue Mr C Shashikantha on the ground that the respondent Commissioner of Customs had no direct control over the various deposits made by the petitioner assessee as stated in his representations since they wee made at different places subject to different proceedings of Investigation and Audit pending before the

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various authorities and even if the petitioner wanted to have any such

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relaxation or adjustment of the amounts lying in deposit with the respondent Customs Department, the Tribunal itself was the competent authority to pass any such order and not the Commissioner of Customs.

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He, therefore, submitted that the petitioner should be relegated to the

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CESTAT itself.

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7 I have heard the learned counsels at length and perused the record.

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8 The Tribunal, created under S.129 of the Customs Act, 1962

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provides a remedy by way of second appeal to the assessee, the first appeal lying before the Commissioner(Appeas)l under S.128 of the Act. The provisions of S.129 E of the Customs Act which requires such pre-

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deposit of part of the disputed demand before the Tribunal and which is

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relevant for the present purpose is quoted below for ready reference:

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S.129 E: Deposit of certain percentage of duty demanded or penalty imposed before filing appeal:

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The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal –

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(i) under sub-section (1) of S.128, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Custom;

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(ii) against the decision or order referred to in clause (a) of sub-section (1) of S.129-A, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against;

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(iii) against the decision or order referred to in clause (b) of sub-section (1) of S.129-A, unless the appellant has deposited ten per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against.

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Provided that the amount required to be deposited under this section shall not exceed rupees ten crores:

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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.

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9 From the bare perusal of the aforesaid provisions of the Customs

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Act, it is clear that the Tribunal, which earlier had the power prior to the

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amendment of the provisions by Finance (No.2) Act, 2014 to relax or

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waive such condition of pre-deposit, has no longer any such power and

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therefore, the argument of the learned counsel for Revenue that the petitioner should be relegated back before the Tribunal to consider this aspect of the matter is without any merit in view of the amendment in

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law and deserves to be rejected. The same is accordingly, rejected.

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10 As far as the compliance with the requirement of pre-deposit is concerned, the representations made by the petitioner assessee before the learned Commissioner of Customs was simple that certain amounts had been deposited by the assessee pending Investigation & Audit and no demand was yet raised and set off against such deposits and therefore, a part of which could certainly be treated as paid to the Department for complying with the requirement of pre-deposit under S.129 E of the Customs Act depending upon the determination of the relevant facts and figures by the respondent Commissioner as to whether any such excess deposit was available with the respondent Department or not and a part of which could be adjusted provisionally for the time being for meeting the requirement of S.129 E of the Customs Act on the part of the petitioner assessee.

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11 This determination of facts required a quasi judicial

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determination with the application of mind by the respondent Commissioner of Customs to the relevant facts and it required an opportunity of hearing to be given to the assessee before disposing or deciding the representations made by the assessee in this regard. Unfortunately, nothing of this sort appears to have been undertaken by the respondent Commissioner in this case. The rejection purportedly made on the office files of the learned Commissioner appears to be blithely communicated to the petitioner vide Annexure F dated 12.8.2015 by the Superintendent of the Office who states in the said communication that “I am directed by the Commissioner to inform you that your request is not acceded”. These kind of communications display arrogance and non-application of mind by responsible officer of the Department viz., Commissioner who, in fact, was expected to pass appropriate quasi-judicial order after giving an opportunity of hearing to the assessee on the representations made by it, since on the result of that order depended a substantive right of the assessee to maintain his appeal before the CESTAT in terms of S.129 E of the Customs Act.

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12 No public authority or public servant much less a quasi-judicial

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authority like the Commissioner of Customs can be allowed or permitted to pass these kind of communications or direct their subordinates to communicate such orders in the aforesaid kingly manner. This Court, therefore, records its displeasure on the tenor of the communication Annexure F dated 12.8.2015 given to the petitioner assessee. To say the least, there was not only a breach of principles of natural justice but the said communication also smacks of arbitrary act and non-application of mind by the learned Commissioner of Customs.

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13 The reconciliation of the deposits and the extent of pre-deposit required to be made for maintaining the present appeal in question before the CESTAT under S.129 E of the Customs Act itself required the consideration of these facts by the said authority because this Court cannot undertake this exercise here in the present writ petition. Therefore, the matter would essentially require a remand back to the

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learned Commissioner to decide the representations of the petitioner

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assess once again , after giving him an opportunity of hearing, by a

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detailed speaking order.

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14 Before the learned Commissioner does so, it is further directed

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that the operation of the impugned detention notice issued vide Annexure H dated 5.11.2015 shall remain stayed as already done by an ad-interim order passed by a co-ordinate Bench of this Court on 29.5.2015 and the Tribunal CESTAT shall also not reject the appeal of the petitioner assessee in question as not maintainable, for want of aforesaid pre-deposit. The assessee may appear before the respondent Commissioner of Customs, in the first instance, on 4^th July, 2016 and the respondent Commissioner is expected to pass fresh speaking order, after giving a reasonable opportunity to the petitioner assessee, within a period of one month thereof. If the amount to the extent of predeposit required can be adjusted out of such ‘spare’ or ‘extra’ amounts already lying deposited with the same Department, irrespective of the different locations of the deposits and subject to pending ‘Investigation & Audit’, then the Commissioner will issue the requisite Certificate of ‘such pre-deposit requirement’ having been satisfied by the assessee

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petitioner. Otherwise, the cogent reasons will have to be recorded by

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the said respondent Commissioner for not accepting such

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representations of the petitioner assessee. It is needless to add that

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the petitioner assessee will have the liberty to avail appropriate legal

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remedy against such negative order of the Commissioner, if any

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15 With these observations, the writ petition is disposed of. No

order as to costs.

Sd/-

Judge

An

M/S Bhatia Global Trading Ltd. v. Commissioner of Customs

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M/S Bhatia Global Trading Ltd. v. Commissioner of Customs

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