2025(04)LCX0262

Rishi Kumar Gupta

Versus

The Additional Commissioner of Customs

W.P. No. 12560 of 2025 decided on 08-04-2025

2025:MHC:947

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.04.2025

CORAM

THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

W.P. No.12560 of 2025
and
W.M.P. Nos.14144, 14146 and 14147 of 2025

Rishi Kumar Gupta                             ... Petitioner

Vs.

1.The Additional Commissioner of Customs,
Chennai - II (Imports),
Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.

2. The Commissioner of Customs (Appeals - II),
Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.                         ... Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari and call for the records pertaining to the impugned order in original No.17/2023-Gr1 dated 25.03.2023 in F.No.CUS/APR/INV/10/2023-GR-1 passed by the 1st respondent and quash the same or alternatively issue any other writ or order or direction most particularly in the nature of Writ of Certiorarified Mandamus and call for records pertaining to the impugned order in Appeal Seaport.C.Cus.II No.1011, 1012, 1013/2024 dated 29.10.2024 passed by the 2nd respondent and quash the same and direct the 2nd respondent to hear the petitioner's appeal filed in F.No.C3/II/551/D/2023-Sea without insisting for mandatory pre-deposit of the penalty imposed vide order in original No.17/2023-GrI dated 25.03.2023.

For Petitioner : Mr.Madan G.

For respondents : Mr.Su. Srinivasan
                            SSC

ORDER

This writ petition has been filed challenging the impugned order in original dated 25.03.2023 passed by the first respondent. Under the impugned order in original dated 25.03.2023, the petitioner has been imposed penalty both under Section 114 and 114AA of the Customs Act, 1962.

2. The following are the undisputed facts:

a) Earlier, the very same petitioner had approached this Court challenging the very same order in original dated 25.03.2023 before this Court by filing writ petitions in W.P. Nos.17616, 17619 and 17626 of 2023;

b) By order dated 15.06.2023, the petitioner was directed to exercise the alternative statutory appellate remedy provided under the Customs Act, 1962 and disposed of the said writ petition;

c) The petitioner also exercised the statutory appellate remedy by preferring the statutory appeal, aggrieved by the order in original dated 25.03.2023 passed by the first respondent;

d) The petitioner, however, did not pay the statutory pre-deposit amount for exercising the said statutory appeal. The petitioner sought for waiver of the pre-deposit amount along with the main appeal;

e) However, the appellate authority dismissed the appeal filed by the petitioner on the ground that the statutory pre-deposit amount was not paid by the petitioner.

3. Aggrieved by the order of the appellate authority, dismissing the appeal filed by the petitioner and aggrieved by the impugned order in original dated 25.03.2023 passed by the first respondent, the petitioner has filed this writ petition. In this writ petition, the petitioner has pleaded that he does not have the financial means to pay the penalty amount as imposed in the order in original dated 25.03.2023 and that he ought to have been granted waiver of the statutory pre-deposit amount by the second respondent (Appellate Authority).

4. Learned counsel for the petitioner has relied upon a Division Bench judgment of the Delhi High Court dated 28.04.2023 passed in W.P. (C) No.1242 of 2022 and C.M. Appl.No.3625 of 2022 in the case of Mohammed Akmam Uddin Ahmed and Other Vs. Commissioner Appeals Customs and Central Excise and Others. He would submit that the petitioner is also similarly placed as that of the petitioners therein and therefore, by applying the ratio of the Delhi High Court referred to supra, the petitioner on account of his lack of financial means to pay the statutory pre-deposit amount, the learned counsel for the petitioner would submit that the second respondent (Appellate Authority) ought to have taken note of the said fact and allowed the waiver of pre-deposit application filed by the petitioner. The case on hand falls under different footing. In the decision relied upon by the learned counsel for the petitioner, referred to supra, it was a case, where the petitioners were poor daily wage earners, who were unable to make a challenge to the seizure and confiscation on account of the penalty imposed on them. In the case on hand, the petitioner is a regular importer and he is the Managing Director of the Company and therefore, it can be inferred that he should be familiar with the statutory provisions of the Customs Act, 1962 relating to the mandatory requirement of depositing the statutory pre-deposit amount for preferring the statutory appeal.

5. Section 129E of the Customs Act, 1962, makes it clear that any statutory appeal filed under Section 128 of the Customs Act, 1962, shall not be entertained unless the pre-deposit amount stipulated under Section 129- E of the Customs Act, 1962 is made by the party preferring the statutory appeal. The section says 'shall', which means the payment of pre-deposit amount is mandatory. Further, as noted supra, the petitioner had approached this Court earlier, aggrieved by the very same impugned order in original dated 25.03.2023 by filing writ petitions in W.P. Nos.17616, 17619 and 17626 of 2023. This Court disposed of the said writ petitions by directing the petitioner to exercise the statutory appellate remedy available under the Customs Act, 1962. The petitioner also did not seek for waiver of pre-deposit amount when the earlier writ petitions filed by the very same petitioner was disposed of by this Court on 15.06.2023.

6. The petitioner being a regular importer, it can be inferred that he would have certainly known about the statutory provisions of the Customs Act, 1962, which makes it mandatory for the petitioner to pay the pre-deposit amount as provided under Section 129-E of the Customs Act, 1962. Having not sought for waiver, when the earlier writ petition filed by the petitioner before this Court was disposed of and based on the same, the petitioner had also preferred the statutory appeal, the question of entertaining this writ petition, wherein the petitioner is re-agitating the very same contentions that were raised by the petitioner in the earlier writ petition while he had challenged the very same impugned order in original dated 25.03.2023 does not deserve any merit. Therefore, not only on the ground that the payment of pre-deposit amount for preferring the statutory appeal under Section 128 of the Customs Act, 1962 is mandatory, this Court has also given due consideration to the fact that the petitioner is re-agitating the issue once again as the very same contentions that have been raised in this writ petition, were also raised in the earlier writ petition filed by the very same petitioner wherein this Court had disposed of the said writ petition by granting liberty to the petitioner by directing the petitioner to exercise the statutory appellate remedy available under the Customs Act, 1962.

7. For the foregoing reasons, this Court does not find any merit in this writ petition. Accordingly, this writ petition is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.

08.04.2025

Index : Yes/No
Speaking Order : Yes / No
Neutral Citation Case: Yes / No
ab

To

1.The Additional Commissioner of Customs,
Chennai - II (Imports),
Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.

2. The Commissioner of Customs (Appeals - II),
Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.

ABDUL QUDDHOSE. J.,

W.P. No.12560 of 2025

08.04.2025