Dismissed

M/S. Rishabh Exports, v. the Commissioner of Customs (Appeals)

Kerala HC10 Aug 2023WA/2444/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ appeal filed by a proprietorship firm against the Customs Tribunal's order dismissing their appeal for non-payment of a 10% statutory pre-deposit. The court held that the appellant failed to comply with the mandatory pre-deposit requirement and terms of an undertaking, making Tribunal's dismissal correct in law.

What did the court decide?

The Writ Appeal is dismissed; the Tribunal's order dismissing the customs appeal for non-payment of pre-deposit is upheld.

M/S. Rishabh Exports, Vs the Commissioner of Customs… — Customs and Excise | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶4

¶5

THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

¶6

THURSDAY, THE 10^TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945

¶7

WA NO. 2444 OF 2018

¶8

AGAINST THE JUDGMENT DATED 7.11.2018 IN WP(C) 34665/2018 OF HIGH COURT OF KERALA

¶9

APPELLANT/WRIT PETITIONER:

¶10

M/S. RISHABH EXPORTS,

¶11

9/12, LAL BAZAR STREET, BLOCK E, 2ND FLOOR, MERCANTILE BUILDING, KOLKATA- 700001, WEST BENGAL, REPRESENTED BY ITS PROPRIETOR MR.RAJA RAM AGARWAL.

¶12

BY ADVS.

¶13

MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.SHARAN SHAHIER

¶14

RESPONDENTS/RESPONDENTS IN WP(C):

¶15

1 THE COMMISSIONER OF CUSTOMS (APPEALS), CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN- 682009, KERALA.

¶16

2 THE DEPUTY REGISTRAR, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, 1ST FLOOR, W.T.C BUILDING, FKCCI COMPLEX, K.G.ROAD, BANGALORE- 560009, KARNATAKA.

¶17

BY ADV THOMAS MATHEW NELLIMOOTTIL, SC

¶18

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

:2:

W.A..No.2444 of 2018

JUDGMENT

Dr. A.K.Jayasankaran Nambiar, J.

¶23

This Writ Appeal is preferred impugning the judgment dated 07.11.2018 of a learned Single Judge in WP(C).No.34665 of 2018.

¶24

The brief facts necessary for disposal of the Writ Appeal are as follows:

¶25

The appellant, which is a proprietorship firm engaged in the business of trading in bulbs and electronic goods had approached the Customs, Excise & Service Tax Appellate Tribunal, aggrieved by an order of the Commissioner of Customs (Appeal) that confirmed a demand of anti-dumping duty on it. The appellant was statutorily obliged to make a pre-deposit of 10% of the duty as a condition for maintaining the appeal before the Appellate Tribunal. When a notice was issued to it by the Tribunal pointing out that the appeal could not be considered unless the statutory pre-deposit of 10% of the duty was paid by the appellant, it approached this Court through WP(C).No.30918 of 2015, which was disposed by Ext.P8 judgment dated 12.10.2015. In the said judgment, this Court directed the

¶26

:3:

¶27

W.A..No.2444 of 2018

¶28

appellate Tribunal to consider the application preferred by the appellant for waiver of pre-deposit and stay of recovery of amounts confirmed against it, on merits, and thereafter, to proceed to hear the appeal in due course. Based on the law that was in force during the relevant time, there was a further direction issued to the appellant to file an undertaking before the Tribunal to the effect that if the earlier judgment of this Court dated 20.03.2015 in WP(C).No.8883 of 2015 was subsequently reversed by the Appellate Court, then the appellant would pay the amount of 10% as contemplated by the amendment to the Finance Act, 1994, with effect from 06.08.2014.

¶29

It would appear that the judgment of this Court dated 20.03.2015 in WP(C).No.8883 of 2015 was subsequently reversed, and the legal position with regard to the payment of mandatory pre-deposit attained finality through the order dated 07.11.2016 of the Supreme Court in SLP(C) No.31297/2016 with SLP(C) No.31643/2016 (Satya Nand Jha v. Union of India) . Consequently, the appellant was obliged to pay the mandatory pre-deposit of 10% of the duty confirmed against it for the purposes of maintaining the appeal before the Tribunal. It is not in dispute before us that the said amount was not paid by the appellant. As a result, the Tribunal passed Ext.P9 final order dismissing the appeal itself for non-compliance with the mandatory pre-deposit required under Section 129 E of the Customs Act, 1962.

¶30

:4:

¶31

W.A..No.2444 of 2018

¶32

Ext.P9 order of the Tribunal was impugned by the appellant in WP(C).No.34665 of 2008, from which this appeal arises. The learned Single Judge, after noticing the aforesaid facts, found that the appellant had an effective alternative remedy against the final order passed by the Tribunal, and hence the Writ Petition was not maintainable. The Writ Petition was, therefore, dismissed as such. In this appeal, while the appellant impugns the judgment of the learned Single Judge, when the matter came up for admission, an earlier Division Bench took note of the submissions of the learned counsel for the appellant that in the case of one bill of entry the appellant had a strong case on merits on the basis of the decision of the Supreme Court in Commissioner of Customs, Bangalore v. G.M. Exports and Others [2016 1 SCC 91] . The earlier Division Bench, therefore, directed the appellant to pay the court fee of Rs.200/- for maintaining the Writ Appeal as a Customs Appeal and stayed the operation of the order dated 29.05.2015 of the Commissioner of Customs (Appeals) that was impugned before the Tribunal.

¶33

We heard Sri.Terry V. James, the learned counsel for the appellant and Sri.Thomas Mathew Nellimoottil, the learned Standing counsel for the respondents.

¶34

:5:

¶35

W.A..No.2444 of 2018

¶36

On a consideration of the rival submissions, we find that the appeal has necessarily to be dismissed since it is not in dispute that the appellant did not comply with the directions of this Court in Ext.P8 judgment and the terms of the undertaking furnished, to pay 10% of the duty amount as a condition for maintaining the appeal before the Appellate Tribunal. That being the case, the appellant cannot be heard to complain when the Tribunal dismissed its appeal for non-compliance with the statutory requirement of pre-deposit as well as the direction issued by this Court in Ext.P8 judgment. Even if this Writ appeal is to be treated as an appeal against Ext.P9 order of the Tribunal that was impugned in the Writ Petition, we have necessarily to dismiss this Writ Appeal for we cannot find the impugned order of the Tribunal (Ext.P9) to be erroneous in law. Thus, in any view of the matter, the Writ Appeal fails and is accordingly dismissed.

¶37

Sd/-

¶38

Dr. A.K.JAYASANKARAN NAMBIAR JUDGE

¶39

Sd/-

¶40

MOHAMMED NIAS C.P. JUDGE

¶41

mns

M/S. Rishabh Exports, v. the Commissioner of Customs (Appeals)

Case brief

What is this about?

What did the court decide?

M/S. Rishabh Exports, v. the Commissioner of Customs (Appeals)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Tisha Navigation Inc. Vs M.v.Narayanan Namboothiri

M/S. Associated Pipe Industries, Vs State of Kerala

Leelamma Joy, Vs Kunjunjamma Mathew

E.O. Lawrence Vs Union of India

A.v.Abdul Majeed Vs the State of Kerala

Smt. Vanaja Vs Sri. K.P Vinayan