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2019 DIGILAW 131 (MEG)

Om Kumar Gupta v. Union of India

2019-05-01

H.S.THANGKHIEW, MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. Aggrieved by the order in original dated 25-10-2018 passed by the Additional Commissioner of Customs (Preventive), N.E.R. Shillong, an appeal was preferred by aggrieved two appellants which include petitioner herein (Appellant No. 2 therein). Petitioner (Appellant No. 2 therein) claimed to have deposited 10% of the penalty imposed on him as required in terms of Section 129 E (ii). The Commissioner (Appeals) CGST Central Excise & Customs, Guwahati has allowed the appeal to the extent it pertained to the petitioner (Appellant No. 2 therein). The relevant portion of the operative part of the judgment which pertains to the petitioner is as under, "However, I drop the charges framed against appellant No. 2 in absence of any evidence to correlate the statement of the appellant No.1 as far as the connivance of the appellant No. 2 in the instant case is concerned. Accordingly, I drop the penalty under Section 112 (b) (i) of the Customs Act, 1962 as imposed upon the appellant No. 2 by the adjudicating authority. The impugned order is set aside to the extent it imposes penalty on the appellant No. 2." 2. The order of the adjudicating authority has been modified to the said extent. 3. Petitioner (Appellant No. 2 therein) claimed to have moved an application before the respondents for refund of pre-deposit i.e., 10% of the penalty which he had deposited in terms of Section 129 E (ii) of the Customs Act before the Commissioner of Customs (Preventive), N.E.R. Shillong, same is not being refunded when in term of the Circular issued by the Ministry of Finance, Department of Revenue (Central Board of Excise & Customs) dated 16th September, 2014, the pre-deposit for filing an appeal is to be refunded with interest within fifteen days of the receipt of the letter of the appellant seeking refund irrespective if the order of the appellate authority is proposed to be challenged by the department or not. Delay in disposal of the application has prompted the petitioner to file the instant writ petition which on the face of it is not to be entertained because the petitioner has the efficacious remedy to take up the matter before the concerned authority. 4. Delay in disposal of the application has prompted the petitioner to file the instant writ petition which on the face of it is not to be entertained because the petitioner has the efficacious remedy to take up the matter before the concerned authority. 4. Be that as it may, suffice it to say that the respondent authorities are under legal obligation to adhere to the circular referred to above and they are expected to look into the grievance of the petitioner as projected with promptitude. 5. Disposed of as above.