CHANDRA SEKHAR JHA versus UNION OF INDIA & ANR.

Citation: [2022] 1 S.C.R. 743 · Decided: 28-02-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed
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Judgment (excerpt)

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[2022] 1 S.C.R. 743
743
CHANDRA SEKHAR JHA
v.
UNION OF INDIA & ANR.
(Civil Appeal No. 1566 of 2022)
FEBRUARY 28, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Customs Act, 1962: s. 129E – Deposit of certain percentage
of duty demanded or penalty imposed before filing appeal –
Appellant intercepted with smuggled gold - Imposition of penalty of
Rs.75 lakhs – Challenged to, by the appellant – Appeals dismissed
by the tribunal since the requirement of the pre-deposit of the amount
u/s. 129E not complied with – High Court upheld the order –
Appellant’s case that since the incident took place in 2013, he must
be governed by s. 129E prior to the substitution wherein there was
a power available with the appellate body in the matter of demand
of pre-deposit – On appeal, held: Substitution of a provision results
in repeal of the earlier provision and its replacement by the new
provision – On facts, substitution has effected a repeal and it has
re-enacted the provision as it is contained in s. 129E – Order passed
by the Commissioner is of 2015, after the substitution of s. 129E
and the appellant filed the appeal in 2017 – Appellant is called
upon to pay the amount in terms of s. 129E after the substitution, a
far lesser amount in terms of the fixed percentage as provided in s.
129E before the substitution – However, the appellant, wishes to
have the benefit of the proviso which, in fact, appropriately would
apply only to a case where the appellant is called upon to pay the
full amount u/s. 129E under the earlier avtar – Legislative intention
would clearly be to not to allow the appellant to avail the benefit of
the discretionary power available under the proviso to the substituted
provision u/s. 129E – Thus, the appellant’s case cannot be accepted,
however, in the interest of justice, appellant given two months time
to comply with the requirement of s. 129E of the Act.
Benara Valves Ltd. and others v. Commissioner of
Central Excise and another (2006) 13 SCC 347 : [2006]
9 Suppl. SCR 341 – referred to.
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
Principles on Statutory Interpretation (12th Edition)
page No. 676 – referred to.
Case Law Reference
[2006] 9 Suppl. SCR 341
referred to
Para 7
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1566
of 2022.
From the Judgment and Order dated 16.12.2021 of the High Court
at Calcutta in CUSTA/12/2018.
Galib Kabir, Sandeep Singh, Advs. for the Appellant.
The Order of the Court was passed by
K. M. JOSEPH, J.
1. By the impugned order, the High Court has rejected the appeal
carried by the appellant against the order passed by the Tribunal under
Section 129E of the Customs Act, 1962 (hereinafter referred to as the
‘Act’). This is for the reason that the appellant has not complied with
the requirement under Section 129E of the Act, as regards, the pre-
deposit of the amount in terms of the said provision.
2. The appellant while traveling in a train was intercepted. The
case against him appears to be that he was carrying Gold smuggled into
India from Bangladesh,and was accompanied with another person also.
On conclusion of the proceedings, the Commissioner of Customs
(Preventive) West Bengal, Kolkata passed a common order, wherein
the appellant came to be visited with penalty in a sum of Rs.75 lakhs. It
appears that the other person was also asked to pay penalty. They
preferred appeals before the Customs, Excise and Service Tax Appellate
Tribunal, Kolkata in the year 2017. The Tribunal finding that the appellant
has not made pre-deposit dismissed the appeal. It is this order which
was put in issue before the High Court and the High Court has upheld
the order.
3. We heard Mr. GalibKabir, learned counsel for the appellant.
Learned counsel for the appellant would point out that demand for pre-
deposit is not warranted in law. His argument is premised on the fact
that the appellant is entitled to have this case dealt with, under the provision
of 129E of the Act, which was in the statute book prior to the present
avatar, substituting it by Act 25 of 2014.
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4. Section 129E of the Customs Act, 1962, as it stood before
substitution by Act 25 of 2014, reads as follows:-
“129E. Deposit,pending appeal, of duty and interest, demanded or
penalty levied.- Where in any appeal under this Chapter, the
decision or order appealed against relates to any duty any interest
demanded in respect of goods which are not under the control of
the customs authorities or any pena
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