Dismissed

Krishan Kumar v. Commissioner of Customs, Rohtak and Anr.

Punjab & Haryana HC19 Feb 2009CWP/2667/2009

Case brief

AI extract

What is this about?

The High Court dismissed this writ petition, holding that the petitioner failed to prove undue hardship before the Tribunal to warrant waiving the pre-deposit under Section 129E of the Customs Act. The delay in producing financial evidence and lack of cogent reasons in the application led to the dismissal.

What did the court decide?

Writ petition dismissed; order of Customs, Excise and Service Tax Appellate Tribunal upheld.

Krishan Kumar Vs Commissioner of Customs… — Writ and Judicial Review | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P.No.2667 of 2009

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Date of Decision : 19.2.2009

Krishan Kumar

...Petitioner

Versus

Commissioner of Customs, Rohtak,

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...Respondents

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and Another.

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CORAM:HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA

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Present: Mr. O.P.Goyal, Sr. Advocate, with Ms. Priya Khurana, Advocate, for the petitioner.

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T.S.Thakur, C.J. (ORAL)

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In this writ petition the petitioner has questioned the correctness of an order dated 18.9.2008 passed by The Customs, Excise and Service Tax Appellate Tribunal, New Delhi, whereby an application for waiver of pre-deposit and grant of stay in terms of Section 129 E of the Customs Act, 1962 (for short 'the Act') has been dismissed.

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Learned counsel for the petitioner made a two-fold submission before us. Firstly, he contended that pre-deposit of a sum of Rs.10 lacs levied towards penalty would cause 'undue hardship' to the petitioner within the meaning of proviso to Section 129 E of the Act. Reliance, in support of that submission, was placed by the learned counsel upon a copy of the statement of account maintained by the petitioner in the Oriental Bank of Commerce at Hisar. It was submitted by him that the said account is the only bank account being operated by the petitioner in which there is no more than Rs.1184.86/- lying in credit, thereby making it very difficult for the petitioner to arrange pre-deposit of a substantial

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C.W.P.No.2667 of 2009

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-2-

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amount of Rs.10 lacs. There is, in our opinion, no merit in that contention. We say so for more than one reasons. Firstly because in terms of provisio to Section 129 E of the Act pre-deposit of duty and interest demanded or penalty levied could be waived or reduced by the Commissioner (Appeals) or the Appellate Tribunal on satisfactory proof of any such deposit causing undue hardship to the petitioner. It was, therefore, necessary for the petitioner to plead undue hardship in the application, seeking waiver of pre-deposit before the Tribunal. The application filed by the petitioner seeking waiver of pre-deposit, a copy whereof, has been enclosed with the writ petition as Annexure P-1, however, does not make even a suggestion, leave alone give any cogent reasons for the alleged undue hardship, which the petitioner would suffer, in case the making of pre-deposit was not waived.

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Secondly because the statement of account, which the petitioner now wishes to press into service before us, was never made available to the Tribunal in support of the alleged undue hardship. Thirdly because the allegation that the bank account, referred to by the petitioner in Annexure P-3, is the only account maintained by the petitioner, is a mere assertion unsupported by any other evidence regarding poor financial health or resources of the petitioner. Superadded to all this is the fact that the Tribunal has recorded a clear finding to the effect that the petitioner had knowingly and intentionally involved himself in illegal diversion of duty free materials imported by M/s Singh Overseas and in exporting sub-standard items towards meeting the export obligations. The Tribunal has come to the conclusion that the petitioner was involved in fraudulent activities. It is noteworthy that a Division

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C.W.P.No.2667 of 2009 -3-

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Bench of this Court has already dismissed C.W.P.No.19769 of 2008 filed by M/s Singh Overseas and another, against the order challenged in the present writ petition, whereby the said party was directed to deposit a sum of Rs.1crore towards duty and a sum of Rs.10 lacs towards penalty.

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It was next argued by learned counsel for the petitioner that the petitioner had not been given a proper and fair opportunity of being heard by the Adjudicating Authority. A similar contention was urged, even, before the Tribunal, which was repelled by the Tribunal with the following observations :

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"We have also been shown evidence to the effect that the personal hearing intimations were, in fact, dispatched from the office of the adjudicating authority. The claim of the learned advocate that on earlier occasions the communications have been personally served on the appellant and the personal hearing intimations were not served personally may not deserve to be accepted. Intimations have been sent as provided for in the law. Taking totality of the circumstances, we are not, prima facie convinced of the violation of principles of natural justice."

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We see no error in the above line of reasoning to take a different view. There is no merit in this writ petition, which fails and is accordingly dismissed.

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(T.S.THAKUR) CHIEF JUSTICE

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19.2.2009 (HEMANT GUPTA) Vimal JUDGE

Krishan Kumar v. Commissioner of Customs, Rohtak and Anr.

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Krishan Kumar v. Commissioner of Customs, Rohtak and Anr.

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