$j?r,i?i%X)3,national v. constitutional right under Articre 3004 of the constitution of rndia

Petition under lSection 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the order in Original No. 11512022-Ad.in Cus ADC dated 3111012022 passed by the Respondent No. 1. lA NO: 2 OF 2023 Between:

1. The Additional rlommissioner of Customs and another, Office r:f the Principal Commissioner ,:f Customs GST Bhavan, L-B- Stadium Road, Basheerbagh, Hyderabad - 50C034 2. Piincipal Commissioner of Customs, and Central Ta1 (Anpeal-l), GST Bhavdn, Vllth Floor, Lal Bahadur Stadium Road, Basheer Bagh, Hyderabad - 500004 ...PETITIONER/RESPONDENTS AND M/s. Zeta lnternational, H-No.49/9, 1st Floor, Kishan Garh Vasant Kunj, New Delhi -1 10070 ..,RESPONDENT/WRIT PETITIONER Petition under {}ection 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may tre pleased to vacate the orders dated 0210212023 in lA NO.1/2023 in WP No.16l]7/2023 in the interest of justice Counsel for the Petitioner: SRl. CHINMAYA SETH FOR Ms. l. MYTRI Counsel forthe Respondents: SRI A. RAMAKRISHNA REDDY The Court made the following: ORDER THE HONOT'RABLE THE ACTING CHIEF JUSTICE SUJOY PAUL THE HONOURABLE DR. JUSTICE G.RADHA RANI AND WRIT PETITION No. 1637 of 2o23 ORDER lOrall: (I'er the llon'ble the A(xuLg ClLrcl Justice. Su.log Paul) Sri Chinmaya Seth, learned counsel for the petitioner and Sri A.Ramakrishna Reddy, learned counsel for the respondents.

2. This writ petition filed under Article 226 of the Constitution assails the Order-in-Original No.lI5l2022- Adjn Cus ADC, dated 31.1O.2O22 (Annexure P1), whereby the iearned authority has passed the following order: "iii) I reject the value of Rs. 1,28,86,4 10/- declared for 19136 pieces of Printed Circuit Boards in respect of export goods under the Shipping Bill Nos.6808152, 6806389 both dated 09.09.2019 and 6873498 dated 12.09.2019, under Rule 8 of the Customs Valuation (Determination of value of Export Goods) Rules, 2O07 ald I re-determine the r,alue o[ 3 I,050 pieces as Nil (Rs.0/-) of Printed Crrcuit Boards seized under Panchanama dated 16,O9.2O19 in respect of export goods covered under the Shipping Bill Nos.68O8152, 6806389 both dated O9.O9.2O19 and 6873498 dated 2 -

12.O9.t',O19. under Rule 6 of Customs V.tluation (Deternrination of value of export goods) Rules, 2O07; (ii) I orrler for absolute conhscation of the 3 1 ,050 pie,:es of Cir<:uit Board, seized under Panchanama dared 16.O9.i:,O19 in respect of export goods covered under r he Shipping Bill Nos. 6808152, 68063U9 both da:cri 09.O9.2OI9 and 6873498 dated 12.09.2019 unrier Section 113(h) and 113(i) of the Customs Act, 1962; ard (iii) I irr.pose a penalty of Rs. 1,OO,OO,O0O/- (Rr.Lpecs C,ne crorc C)nly) on M/s. Zeta International undcr sectron 114(iii) of the Customs AcL, 1962."

3. Brief facts for adjudication of this matter as p,rojected by the pe1.ilioner are that the petitioner filed thr( re \\rhite shipping bills for export of Printed Circuit Boarcls (l:'}CBs) to Dubai, n'hic:h u,ere examined by the officers of Air- Cargo, Customs, l{yderabad, and LET Export Order dated

12.O2.2O 19, was passed. 4 . Based on some intelligence input received by the Directorate ,:f Revenue Intelligence (DRI), Hyderabe d Zonal Unit, that the alleged goods were of substandard quality and were hlghly inflated, the said consignment requested to be examined. -)

5. On 16.O9.2O19 (Annexure R5 with rejoinder), the consignment was examined by the DRI, uide panchanama dated 16.09.2019. The Chartered Engineers on the same day examined 19 1 36 pieces in the consignment at the behest of DRI officers so as to ascertain the nature of the PCBs. After examination of the goods, the same were seized by the DRI uide order dated 16.09.2O19 under Section 110(1) of the Customs Act, 1962. 6 . The petitioner was served ."vith show cause notice dated O5.03.2O2O by the Joint Director, DRI New Delhi The petitioner preferred representations dated 28.O8.2O2O and 04.09.2020 (Annexures P6 and P7) and requested to provide additional documents r.l.hich n,ere relevant for the purpose of adjudication of the matter.

7. On 74.O9.2O2O, tL,e petitioner submitted a detailed interim reply to the show cause notice and asked for permission to cross-examine the Chartered Engineers, who conducted the valuation and submitted the report thereof 4 dated 16.09.20L9. lt \ Ias also prayed for cross exartrinatton of Panchas ,rf the panchanama dated 16'09 2019'

8. On 22.12.2O2O, personal hearing was grante d to the petitioner ard it specifically reiterated its request for cross- examinatiort of the Chartered Engineers and the l)anchas' On 31.12.i'.O2O, Order-in-Original was passed rrnd the va-lue of 3 i05O PCBs sought to be exported uncier shipping bill u,as rejected and held to be NIL The goc'ds q'ere absolutely confiscated and penalty of Rs' 1,00,0C0/- u'as imposed upon the Petitioner. g . Aggrierved, the petitioner preferred an aprpeal on O5.O3.2O21 against the aforesaid Order-in Origiral dated

31.12.2O2O before respondent No.2. iO. Respcrndent No.2, on 21.06'2021, set aside the impugned Order-in-Originai and directed the "ruthority below to consicler the matter afresh in accordance u'ith the principles of natural justice.

11. In turn, on 26.11.2021, respondent No.l treld that the matter u'as examined afresh and declined the pral-er of ) the petitioner seeking cross-examination of the Chartered Engineers and Panchas'

12. The petitioner, against the aforesaid order' filed a second appeal before respondent No'2 on 24'O22022' Tlle petitioner was given a personal hearing before respondent No.1 on 12.05.2022 in the Order-in-Original proceedings' The petitioner informed the authority that its appeal is pending consideration before the appellate authority against the order dated 26'71'2021' But' the said authority did not agree with the petitioner's request and after granting personal hearing on 15 07 '2022 ' passed the impugned Order-in-Original dated 3|'IO'2O22' whereby the penalty of Rs.1,OO,0O,OO0/- (ten times of the penalty in Order-in-Original dated 3l '12 '2O2O\ was imposed on the petitioner.

13. Learned counsel for the petitioner submits that when the petitioner's appeal against the order dated 26'll'2021 was pending consideration, in all fairness' the authority should. have waited for the outcome of the said appeai' However, the authority had decided the matter in the same I i , I i l I I i i r 6 manner and lvithout assigning adequate reasons as to why the Chartered Engineers and Panchas should not be examined, passed the imPugned permitted trt be cross Order-in-Original.

14. Learned counsel for the petitioner submits t hat the facts and cit'cumstances on the strength of u'hich t'he first Order-in Original \ ras passed remained the same rthen the impugned Order-in-Original was passed' Thtrs, the imposition of higher penalty is shockingly disproportionate, uncalled for and unwarranted. Learned counsel for the petitioner further submits that in view of the aforesaid factual backdrop and judgments of the Delhi High (lourt in Ashish Ban.sal v. Principal Commissioner of Customs (Preventivel (W.P (C) No.6855/2022 and CM APPL.No.2OB62 I 2022, dated 17.03.20231 and Mohammed Akmam Uddin Ahmed v. Commissioner Appeals Customs and Central Excise (W.P(C).No. 1242 l2O,).2 &' CM APPL.No.3f>12 512022, dated 28.04.2023\, the petitioner may be permitted to assail the Order-in-Original be ore the appellate a,uthority, but the petitioner may not be 7 compelled to deposit the statutory amount before the appellate authority

15. Sri A.Ramakrishna Reddy, learned counsel for the respondents, opposed the prayer and urged that the imposition of penalty of Rs.1,O0,00 ,OOO /_ is in accordance with law and cannot be said to be harsh and excessive. However, he fairly admitted that the petitioner has a statutory alternative remedy to assail the Order_in Original. 16 We have heard the pa_rties at length. 17 . This is not in dispute that there exists a statutory alternative remedy to the petitioner. This is also not in dispute that based on the same fact situation in the Order- in-Original dated 31.12.2O2O, penalty imposed was Rs. 1,O0,O00/ , whereas in the second Order_in_Original it is enhanced to Rs.l,OO,OO,OOO/-. The Delhi High Court in Ashish Bansal (supra) opined as under: "9. Considering that the petitioner has a remedy of appea,l before the Customs Excise and Service .I.ax 8 - Appellrrte Tribunal (hereafter 'Tribunal'), u'e do not consider it apposite to examine the pelitioner's challer-rge to the impugned order in this petition. However, gi',,en thc mrrnner in which Lhe penalty has been compu ted ancl the financial condition of the petitioner, u,e consider it apposite to direct the Tribunal to consider the petitioner's appeal without any pre-deposit."

18. The similar view is taken in the judgrnent of Mohammed Akmam Uddin Ahmed (supra).

19. In tl-rjs view of the matter, we deem it pr:oper to dispose of this \,!,rit petition with the following directions i) 'lhe petitioner may prefer an appeal ag:rinst the impugned Order-in-Original dated 31.1O.2022 r,vithin three weeks from today. If the zrppeal is prelerred within the aforesaid tinre, the zrppellate authority shall consider and rlecide it on merits and shall not dismiss it on the EJround of delay; ii) Oonsidering the fact that the petitioner suffered zr penalty of Rs. 1,00,000/- in the previous round, which is enhanced to Rs. 1,0O,011,000/ -, in the peculiar factual backdrop of this matter, \ 9 we deem it proper to permit the petitioner to pre-deposit on the basis of the penalty of Rs. 1,00,00O/- before the appellate authority. However, this will not have any effect on merits of the matter and the appellate authority will be free to decide the appea-l on its own merits. iii) If the petitioner undertakes the aforesaid exercise of hling the appeal within the aforesaid time and deposits the amount as stated above, the learned appellate authority shall make endeavour to decide the appeai expeditiously. ir) If the petitioner's Appeal No.ST 12O22-Cus against the order dated 26.),1.2021 is pending before the appellate authority, the appellete authority may hear both the matters together and decide them in accordance with law.

20. With the aforesaid and without expressing any opinion on,merits, the writ petition is disposed of. There shall be no order as to costs IO Interloc:utory applications, if any pending, shall stand closed. //TRUE COPY// Sd/.T. JAYASREE GIS ASSI OFFICER l.TheAdditionalCommissionerofCustomsandanother,officeofthePrincipal Commissioner ot customl'"Cs"i ani"'", L g stadi'm Roacl' Basheerbagh' Hvderabad - 500034 z rtJ"p?i'.?Ipri''c-#missioner of Customs, and.C^entral Tax (Appeal-l)'.GST - B't;";;. Vilt, ioot rar 6anaour siioium'noaa, Basheer Baqh' Hyderabad - e 6].Ucc to sR GHINMAYA sETH, Adv-ocate{oPUCl - - ^ ;. 5;; cc i. 5Cr A nnunkntsnNA REDDY, Advocate [oPUCl 5. Two CD CoPies 500004 To, BM MP $ ) HIGH COURT DATED:2210112025 ORDER WP.No.1637 ot 2023 C J l- , i: ( t d zg JAi'i zi:i ( v c l. O€,qpAT(.; DISPOSING OF THE WRIT PETITION WITHOUT COSTS ..8 c*t' 6