Karnataka High Court
Mr Abdulla Mamu vs The Joint Commissioner on 19 December, 2018
Bench: Ravi Malimath, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 19TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION NO.26341 OF 2018 (CESTAT)
BETWEEN:
MR. ABDULLA MAMU
SON OF K.MAMU
AGED ABOUT 45 YEARS
RESIDING AT PAIVALIKE HOUSE
KASARAGOD TALUK AND DISTRICT - 671121
KERALA STATE
BY GENERAL POWER OF ATTORNEY HOLDER
SRI.IBRAHIM
... PETITIONER
(BY SRI P. P. HEGDE, ADVOCATE)
AND:
1. THE JOINT COMMISSIONER
NEW CUSTOMS HOUSE
PANAMBUR
MANGALURU - 575 010.
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2. THE COMMISSIONER OF CUSTOMS (APPEALS)
OFFICE OF COMMISSIONER OF
CUSTOMS (APPEALS)
B.M.T.C. BUILDING
ABOVE BMTC BUS STAND
DOMLUR
BENGALURU - 560 071.
3. CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BENGALURU-560009
REPRESENTED BY ITS JOINT COMMISSIONER.
... RESPONDENTS
(BY SRI: VIKRAM A. HUILGOL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO DECLARE CLAUSE (I), (II) AND (III) OF SECTION 129E
OF THE CUSTOMS ACT, 1962 IN SO FAR AS IT PERTAINS
TO IMPOSITION OF MANDATORY PRE-DEPOSIT OF THE
DISPUTED DUTY AND/OR PENALTY AS A CONDITION
PRECEDENT FOR ENTERTAINING THE APPEAL, AS
UNCONSTITUTIONAL; QUASH THE ORDER-IN-ORIGINAL
NO.05 OF 2015 DATED 29.01.2015, PASSED BY THE
RESPONDENT NO.1/JOINT COMMISSIONER OF CUSTOMS,
NEW CUSTOMS HOUSE, PANAMBUR, MANGALURU, VIDE
ANNEXURE-A AND ETC.,
*****
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, RAVI MALIMATH, J., MADE THE
FOLLOWING:
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ORDER
The case of the petitioner is that, he was an employee at Dubai since 1989. When he was in India, he was proceeding from his native place from Mangaluru to Mumbai by Jet Airways. While he was leaving home, his brother handed over a bag containing old coins. The petitioner came to know that it belonged to one Moosa Kunhi, who has handed it over to him for the purpose of exhibition at a school and he has to return the same to Moosa Kunhi at Mumbai. On a reasonable belief that the hand baggage of the writ petitioner contained dutiable or contraband goods, the same was examined. It was found that he had tickets to travel from Mangaluru to Mumbai and thereafter from Mumbai to Dubai. He was also found in possession of various coins. The said coins were detained by a detention memo and were sent to the expert for the assessment of the value. In the report, it was indicated that the coins belonged to the early medieval period. That the coins were of dynasties like Chera, Chola, 4 Pandya, local Keladi and Vijaynagar dynasties, along with a few coins of Muslim rulers. That they were all antiquities and that the coins are declared as 'Antiquity' under Section 1(1) of the Antiquities and Art Treasure Act, 1972.
2. Notice was issued to Moosa Kunhi. Thereafter, notice was also issued to the petitioner to show cause as to why the seized coins should not be confiscated under Section 113(d) of the Customs Act, 1962 and penalty should not be imposed on the petitioner. Personal hearing was granted. Thereafter, by the order dated 29.01.2015, the Commissioner of Customs, passed an order for confiscating the seized coins totally weighing 1175 grams under Section 113(d) of the Customs Act, 1962 and imposed a penalty of Rs.2,00,00,000 (Rupees Two Crores only) on the petitioner.
3. Challenging the same, the appeal was filed before the Commissioner of Customs (Appeals). In order to maintain the appeal, the petitioner had to make a 5 pre-deposit of 7.5% of the penalty imposed, namely, Rs.15,00,000/- (Rupees Fifteen Lakhs only). He did not deposit the same. There was also a delay in filing the appeal. Hence, on the ground of delay and non deposit of the pre-deposit amount, the appeal was dismissed. Aggrieved by the same, he approached the Customs, Excise and Service Tax Appellate Tribunal. By the order dated 09.02.2018, the appeal was dismissed. Hence, this petition.
4. The learned counsel for the petitioner contends that the order passed by the Appellate Authority is erroneous and liable to be set aside. That the question of pre-deposit is unconstitutional. The writ petition is filed seeking for a direction to declare Clause (i), (ii) and (iii) of Section 129-E of the Customs Act, with regard to imposition of mandatory pre-deposit as unconstitutional and other consequential reliefs'. Hence, he pleads that the petition be considered without pre-deposit. 6
5.(a) The same is disputed by the respondents' Counsel. He pleads that Section 129-E of the Customs Act, is pari materia with Section 35-F of the Central Excise Act. The said provision of law has been held to be constitutionally valid with regard to the payment of pre- deposit amount as reported in the case of M/S HINDUSTAN PETROLEUM CORPORATION LTD., MANGALURU AND ANOTHER VS. UNION OF INDIA, MINISTRY OF FINANCE AND OTHERS reported in ILR 2015 KAR 5473.
Furthermore, the Division Bench of the Mumbai High Court in the case of HARESH NAGINDAS VORA Vs. UNION OF INDIA AND ANOTHER reported in 2017(5) Mh.L.J., have upheld the constitutional validity of Section 129-E of the Customs Act. Hence, he pleads that since the said amount is not deposited by the petitioner no further orders could be passed.
(b) He further submits that the proceedings have since been initiated against the petitioner and others and that the sanction for prosecution under Section 137 of the 7 Customs Act has been obtained for prosecuting the petitioner for the offence punishable under Sections 135(1)(a), (b) and (c) of the Customs Act. That the proceedings will be taken to its logical end.
6. On hearing learned counsels, we do not find any merit in this petition. The learned Single Judge having taken note of the fact with regard to Section 35-F of the Central Excise Act, which is pari materia with Section 129- E of the Customs Act with regard to pre-deposit, we do not propose to take a different view of the same. Even otherwise, the Division Bench of Mumbai High Court have upheld the constitutional validity of Section 129-E of the Customs Act. On considering the judgment, we are in agreement with the same. The question of pre-deposit cannot be said to be unconstitutional. Therefore, the first prayer is rejected.
7. So far as the consequential prayers are concerned, in view of the non payment of pre-deposit 8 amount, the appeal cannot be considered by the authorities. Under these circumstances, we are of the view that until and unless the pre-deposit is made, the proceedings cannot be considered. There is no specific request even before this Court seeking time to make the pre-deposit amount before the authority. Hence, for these reasons, we do not find any grounds to entertain this petition.
Consequently, the petition being devoid of merit is dismissed.
Sd/- Sd/-
JUDGE JUDGE
*bgn/-