Kerala High Court
Nissar Madapatt Pattikkarayalappil vs Additional Commissioner Of Customs on 8 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:83291
W.P (C) No.26883/2024 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 26883 OF 2024
PETITIONER/S:
SABITH,
S/O. MUHAMMEDKUTTY THADATHIL, THARAYIL, THENNALA,
MALAPPURAM, KERALA, PIN - 676508
BY ADVS.
NABIL KHADER
M.P.MADHAVANKUTTY
O.A.NURIYA
RUKSANA SATHAR P.A.
RESPONDENT/S:
1 ADDITIONAL COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE COCHIN, ERNAKULAM, PIN - 682009
2 DIRECTORATE OF REVENUE INTELLIGENCE COCHIN ZONAL UNIT,
COCHIN REPRESENTED BY SENIOR INTELLIGENCE OFFICER, DRI,
COCHIN ZONAL UNIT, ERNAKULAM DISTRICT, PIN - 682009
3 THE COMMISSIONER OF CUSTOMS (APPEALS),
CUSTOM HOUSE, COCHIN-09, ERNAKULAM DISTRICT, PIN -
682009
BY ADVS.
P.R.SREEJITH
SHRI.SREELAL N.WARRIER, SC, GST INTELLIGENCE
(DIRECTORATE GENERAL -DGGI)
SREELAL N.WARRIER, SC, DIRECTORATE OF REVENUE
INTELLIGENCE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH WP(C).38022/2024, 38213/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83291
W.P (C) No.26883/2024 -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 38022 OF 2024
PETITIONER/S:
NAJEEB RAHMAN,
AGED 45 YEARS
S/O. MARAKKARVALAPPIL, VALAPPIL HOUSE, NANNAMBRA P.O.,
KUDOOR, NANNAMBRA, MALAPPURAM, KERALA, PIN - 676320
BY ADVS.
NABIL KHADER
O.A.NURIYA
RUKSANA SATHAR P.A.
SHAITYA SANTHOSH
RESPONDENT/S:
1 ADDITIONAL COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN, PIN - 682009
2 DIRECTORATE OF REVENUE INTELLIGENCE, COCHIN ZONAL UNIT,
COCHIN, REPRESENTED BY SENIOR INTELLIGENCE OFFICER, DRI
COCHIN ZONAL UNIT, PIN - 682009
3 THE COMMISSIONER OF CUSTOMS (APPEALS),
CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN, PIN - 682009
4 THE ASSISTANT COMMISSIONER OF CUSTOMS (REVENUE RECOVERY
CELL),
CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN, PIN - 682009
BY ADV SHRI.SREELAL N.WARRIER, SC, GST INTELLIGENCE
( DIRECTORATE GENERAL -DGGI)
SRI. V. GIRISHKUMAR, SC-CBIT AND CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH WP(C).26883/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83291
W.P (C) No.26883/2024 -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 38213 OF 2024
PETITIONER/S:
JAFAR KANNAYIL PALLIPURAYI,
AGED 45 YEARS
CHAKKUM KADAVU, KALLAI P.O., KOZHIKODE, KERALA, PIN -
673003
BY ADVS.
NABIL KHADER
O.A.NURIYA
RUKSANA SATHAR P.A.
SHAITYA SANTHOSH
RESPONDENT/S:
1 ADDITIONAL COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE COCHIN, ERNAKULAM, PIN - 682009
2 DIRECTORATE OF REVENUE INTELLIGENCE,
COCHIN ZONAL UNIT, COCHIN, REPRESENTED BY SENIOR
INTELLIGENCE OFFICER, DRI, COCHIN ZONAL UNIT, PIN -
682025
3 THE COMMISSIONER OF CUSTOMS (APPEALS),
CUSTOM HOUSE, COCHIN-09, PIN - 682009
BY ADV SREELAL N.WARRIER, SC, DIRECTORATE OF REVENUE
INTELLIGENCE
SRI. V. GIRISHKUMAR, SC-CBIT AND CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH WP(C).26883/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83291
W.P (C) No.26883/2024 -4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 38235 OF 2024
PETITIONER/S:
NISSAR MADAPATT PATTIKKARAYALAPPIL,
AGED 45 YEARS
MADAPATTPATTIKKARAYALAPPIL HOUSE, MEZHYATHUR POST,
PALAKKAD, KERALA, 679534, PIN - 679534
BY ADVS.
NABIL KHADER
O.A.NURIYA
RUKSANA SATHAR P.A.
RESPONDENT/S:
1 ADDITIONAL COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN, PIN - 682009
2 DIRECTORATE OF REVENUE INTELLIGENCE, COCHIN ZONAL UNIT,
COCHIN, REPRESENTED BY SENIOR INTELLIGENCE OFFICER,
DRI, COCHIN ZONAL UNIT, PIN - 682025
3 THE COMMISSIONER OF CUSTOMS (APPEALS),
CUSTOM HOUSE, COCHIN-09, PIN - 682009
BY ADV SREELAL N.WARRIER, SC, DIRECTORATE OF REVENUE
INTELLIGENCE
SRI. V. GIRISHKUMAR, SC-CBIT AND CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH WP(C).26883/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83291
W.P (C) No.26883/2024 -5-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 38427 OF 2024
PETITIONER/S:
MOHAMMED VALAPPIL,
S/O. MARAKKARVALAPPIL, VALAPPIL HOUSE, NANNAMBRA P.O.,
KUDOOR, NANNAMBRA, MALAPPURAM, KERALA, PIN - 676320
BY ADV NABIL KHADER
RESPONDENT/S:
1 ADDITIONAL COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN, ERNAKULAM, PIN - 682009
2 DIRECTORATE OF REVENUE INTELLIGENCE,
COCHIN ZONAL UNIT, COCHIN, REPRESENTED BY SENIOR
INTELLIGENCE OFFICER, DRI, COCHIN ZONAL UNIT, PIN -
682025
3 COMMISSIONER OF CUSTOMS (APPEALS),
CUSTOM HOUSE, COCHIN-09, PIN - 682009
4 ASSISTANT COMMISSIONER OF CUSTOMS,
REVENUE RECOVERY CELL, CUSTOMS HOUSE, WILLINGDON
ISLAND, COCHIN, PIN - 682009
BY ADV SREELAL N.WARRIER, SC, DIRECTORATE OF REVENUE
INTELLIGENCE
SRI. V. GIRISHKUMAR, SC-CBIT AND CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH WP(C).26883/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83291
W.P (C) No.26883/2024 -6-
JUDGMENT
[WP(C) Nos.26883/2024, 38022/2024,
38213/2024, 38235/2024 & 38427/2024]
The issue raised in these writ petitions are covered against the
petitioners by the judgment of the Supreme Court in Chandra Sekhar Jha
v. Union of India and others; (2022) 14 SCC 152. It is clear from a
reading of the judgment of the Supreme Court that after the amendment of
Section 129 E of Customs Act, 1962 with effect from 06-08-2014 it is a
provision beneficial to the persons who propose to file an appeal (like the
petitioners herein) and only requires deposit of a portion of the demand. On a
consideration of the provision is substituted with effect from 06-08-2024 and
on considering the question as to whether such provision will cause undue
hardship, it was held as follows;
"7. On a conspectus of the provisions of Section 129-E before
and after the substitution, it becomes clear that the lawgiver
has intended to bring about a sweeping change from the
previous regime and usher in a new era, under which the
amount to be deposited was scaled down and pegged at a
certain percentage of the amount in dispute. In other words,
while under Section 129-E, as it stood prior to the
substitution, the appellant was to deposit the duty and the
interest demanded or the penalty levied, in the present
regime, the appeal is maintainable upon the appellant
depositing seven-and-a-half per cent of the amount. Under
2024:KER:83291
the earlier regime, in other words the entire amount which
was in dispute had to be deposited. Under the earlier avatar
of Section 129-E, the lawgiver also clothed the appellate body
with power as contained in the first proviso. The first proviso
provided the Commissioner (Appeals) or as the case may be,
Appellate Tribunal the power to dispense with such deposit,
subject to conditions as he deemed fit to impose to safeguard
the interest of the Revenue. (Emphasis supplied)
8. The question whether it is undue hardship has been the
subject-matter of the judgment of this Court in Benara Valves
Ltd. v. CCE [Benara Valves Ltd. v. CCE, (2006) 13 SCC 347],
wherein it, inter alia, held as follow:
"13. For a hardship to be "undue" it must be
shown that the particular burden to observe or
perform the requirement is out of proportion to
the nature of the requirement itself, and the
benefit which the applicant would derive from
compliance with it."
9. It is in sharp departure from the previous regime that the
new provision has been enacted. Under the new regime, on
the one hand, the amount to be deposited to maintain the
appeal has been reduced from 100% to 7.5% but the
discretion which was made available to the appellate body to
scale down the pre-deposit has been taken away."
It appears that the issue was also considered in the c ontext of the provisions of
the Finance Act, 1994 by a learned Single Judge of this court in the judgment
dated 24-03-2022 in W.P (C) No.25453/2021, where this court held as
2024:KER:83291
follows;
"7. On a consideration of the rival contentions, it is
understood that the limited relief sought for by the petitioner
is to waive the mandatory pre-deposit of 7.5% required to
institute an appeal before the CESTAT. When the pre-deposit
required for preferring the appeal in the instant case was
Rs.18,06,057/-, petitioner has already deposited
Rs.12,15,000/- and the balance is only Rs.5,56,057/- which
has not been deposited, since the petitioner claims to be in
penury.
8. A perusal of the statutory provisions will reveal that
the amendment to section 35F of the Central Excise Act r/w
Section 86 of the Finance Act, 1994, clearly manifest the
intention of the legislature that the waiver of pre-deposit,
which was being resorted to, quite often by the courts of law,
needed to be amended to make the pre-deposit mandatory.
Thus, after the Amendment Act came into force, no discretion
is available with the courts of law to waive the mandatory
requirement of pre-deposit of 7.5% even if it is assumbed (sic)
to be onerous in the circumstances of the case. In the decision
cited by the learned Counsel for the respondents ie. Dish TV
India's case (supra) after considering the decisions of the
Delhi High Court itself, the Division Bench of the said Court
came to the conclusion that after the amendment, there is no
question for any waiver of pre-deposit, and that law does not
permit such waiver. When the Statute does not provide for
waiver of a predeposit, it is impermissible for this Court to
act contrary to the legislative intention merely on the plea of
2024:KER:83291
financial hardships. If such pleas are entertained, and
directions are issued for waiving the pre-deposit, there will
be no end to such demands. Further if orders are issued,
contrary to the Statute the same will destroy the very scheme
of the Statute including the consequent amendment.
9. In this context, it is appropriate to refer to the decision of
the Supreme Court in Oil and Natural Gas Commission vs.
Gujarat, [2017 (5) SCC 42, wherein it was observed that the
High courts cannot disregard the statutory mandates.
10. Even in the decisions cited by the learned Counsel for the
petitioner in [Pioneer Corporation Vs.Union of India [2016
(340) ELT 63 Delhi], the observations of the court indicates
that the interference with the statutory mandates after
amendment, must be done only in very rare cases where a
justification is made out for such an interference. Despite
observing as such, the court refuse to permit waiver of the
predeposit in that case. In view of the above, I find no merit
in this writ petition and the same is dismissed. However,
liberty is granted to the petitioner to make the balance of the
pre-deposit within a period of one month from the date of a
receipt of a copy of this judgment. If the said payment is
made and the appeal is otherwise in accordance with law,
necessarily the Tribunal will consider and dispose of the
appeal on merits.
The writ petition is dismissed."
Therefore, I am of the view that the petitioner in these cases cannot be
granted any relief in exercise of jurisdiction vested in this court under Article
2024:KER:83291
226 of the Constitution of India. Writ petitions fail and they are accordingly
dismissed.
Sd/-
GOPINATH P.
JUDGE
AMG
2024:KER:83291
APPENDIX OF WP(C) 38022/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.30/2024 DATED 21.02.2024
ISSUED BY THE 1ST RESPONDENT
Exhibit P2 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT
Exhibit P3 A TRUE COPY OF THE PETITION TO WAIVE
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED 14.05.2024
Exhibit P5 A TRUE COPY OF THE DEMAND LETTER DATED 29.08.2024
ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER
2024:KER:83291
APPENDIX OF WP(C) 38213/2024
PETITIONER EXHIBITS
Exhibit P1 ORDER NO.30/2024 DATED 21.02.2024 PASSED BY
THE 1ST RESPONDENT
Exhibit P2 A TRUE COPY OF THE APPEAL ON THE DATE OF 20TH
APRIL 2024
Exhibit P3 A TRUE COPY OF THE A TRUE COPY OF THE
PETITION TO WAIVE DATED 20.04.2024
Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED
14.05.2024
2024:KER:83291
APPENDIX OF WP(C) 38235/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.30/2024 DATED
21.02.2024 ISSUED BY THE 1ST RESPONDENT
Exhibit P2 A TRUE COPY OF THE APPEAL APPEAL FILED THE
3RD RESPONDENT DATED 20.04.2024
Exhibit P3 A TRUE COPY OF THE PETITION TO WAIVE DATED
20.06.2024
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED
14.05.2024
2024:KER:83291
APPENDIX OF WP(C) 38427/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.30/2024 DATED
21.02.2024 PASSED BY THE 1ST RESPONDENT
Exhibit P2 A TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT ON THE
DATE OF 20TH APRIL 2024
Exhibit P3 A TRUE COPY OF THE PETITION TO WAIVE ON THE
DATE OF 21.04.2024
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED
14.05.2024
Exhibit P5 A TRUE COPY OF THE DEMAND LETTER DATED
29.08.2024 ISSUED BY THE 4TH RESPONDENT
2024:KER:83291
APPENDIX OF WP(C) 26883/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT DATED
20.04.2024
Exhibit P2 A TRUE COPY OF THE PETITION TO WAIVE DATED
20.04.2024
Exhibit P3 A TRUE COPY OF THE COMMUNICATION
NO.AU/MISC/01/2022.PT. (III) DATED 14.05.2024
FROM THE SUPERINTEND OF CUSTOMS (APPEALS) TO
THE CONCERNED COUNSEL
