Delhi High Court: The Division Bench of Sanjeev Sachdeva and Ravinder Dudeja*, JJ., opined that if the statute gave a right to appeal upon certain conditions, it was upon fulfillment of those conditions that the right became vested and exercisable to appellant. The proviso to Section 129-E of the Customs Act, 1962 (‘the Act’) gave a discretion to the Tribunal in cases of undue hardships to dispense the obligation to deposit the duty/interest or penalty. The Court thus dismissed the present appeals filed under Section 130 of the Act and held that there was no error in the orders passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (‘CESTAT’), thereby, dismissing the appeal for non-compliance of the deposit order dated 17-6-2009, as per the provisions of Section 129 read with proviso of Section 129-E of the Act.
Background
Appellants, G & S International and Raj International, were engaged in exports, which were made under Duty Entitlement Passbook Scheme (‘DEPB’) and Drawback Scheme. Based on the information that appellants were engaged in fraudulent exports of Shawls and Readymade garments to Commonwealth of Independent States countries (CIS) via UAE, investigation was conducted by the Directorate of Revenue Intelligence. On conclusion of investigation, Show Cause Notices (‘SCNs’) were issued to appellants. Thereafter, SCNs were adjudicated vide Order-in-Original (‘OIO’) dated 30-9-2008, holding that the Drawback amounting to Rs 67,56,033 in the matter of G & S International and Drawback amounting to Rs 1,00,05,250 in the matter of Raj International, were inadmissible to them and the same should be recovered from them along with interest at 18% p.a. under Section 75(2) of the Act read with Rules 16 and 16-A of the Customs and Central Excise Duty Drawback Rules, 1995.
Being aggrieved with the OIO dated 30-9-2008, appellants preferred an appeal along with application for waiver of pre-deposit under Section 129-E of the Act and stay of operation of the impugned order dated 30-9-2008 before the CESTAT. The CESTAT vide order dated 17-6-2009 dismissed the stay applications, directing G.S. International to deposit Rs 67,56,033 and Raj International to deposit an amount of Rs 1,00,05,250. The CESTAT vide Final Order dated 10-8-2009, recorded non-compliance of its order dated 17-6-2009 and dismissed the appeals that were filed by appellants before the High Court. Appellants challenged the final order of CESTAT and filed the present appeals under Section 130 of the Act.
Analysis, Law, and Decision
The issue for consideration was “whether the CESTAT Tribunal erred in law in dismissing the appeal for non-compliance of the deposit order dated 17-6-2009 in view of the provisions of Section 129(2-A) read with proviso to Section 129-E of the Act?”.
The Court noted that Section 129-E of the Act as it stood prior to its Amendment by Finance Act, 2014, conferred a discretion on the Commissioner (Appeals) and CESTAT to dispense with the deposit liable to be made for the purposes of an assessee pursuing an appeal where it was found that the deposit of duty, interest or penalty levied would cause hardship.
The Court observed that Section 129-E of the Act did not expressly provide for the rejection of appeal for non-compliance with the requirements regarding the deposit of penalty or duty but the provision made it obligatory on appellants to deposit the duty or penalty pending the appeal and if a party did not comply either with the main Section or with any order that might be passed under the proviso, the Appellate Authority was fully competent to reject the appeal for non-compliance with the provisions of Section 129-E. Unless Section 129-E of the Act was complied with, the Appellate Authority could not proceed to hear the appeal on merits. Therefore, the consequence of failure to comply with Section 129-E of the Act was the rejection of appeal on that ground.
The Court opined that if the statute gave a right to appeal upon certain conditions, it was upon fulfillment of those conditions that the right became vested and exercisable to appellant. The proviso to Section 129-E of the Act gave a discretion to the Tribunal in cases of undue hardships to dispense the obligation to deposit the duty/interest or penalty.
The Court noted that in the present case, the application for waiver of pre-deposit was dismissed by the Tribunal and the petitions challenging the orders passed by the CESTAT had been dismissed by the High Court and appellants did not make compliance of pre-deposit order even thereafter and therefore the CESTAT was constrained to dismiss the appeals.
The Court thus dismissed the present appeals and held that there was no error in the orders passed by the CESTAT, thereby, dismissing the appeal for non-compliance of the deposit order dated 17-6-2009, as per the provisions of Section 129 read with proviso of Section 129-E of the Act.
[G&S International v. Commr. of Customs, 2024 SCC OnLine Del 1794, decided on 14-3-2024]
*Judgment authored by: Justice Ravinder Dudeja
Advocates who appeared in this case :
For the Appellant: Navneet Panwar, Advocate
For the Respondent: Anish Roy, SSC; Girish Agarwal, Advocate