The Division Bench of Gujarat High court has held that the Indian citizen working as travel agent in Dubai need to deposit pre-deposit under Section 29E of customs Act for further proceedings.
The petitioner, Aziz Fakirmohamed Sumbhaniya was an Indian citizen working in Dubai as an Agent for various companies like UNI Globe Tourism, Fardan Tourism LLC and Universal Holidays etc. A show cause notice was issued in relation to the seizure of gold proposing to impose personal penalty under section 112 of the Customs Act, 1962. The show cause notice revealed the activity of smuggling.
The Principal Commissioner of Customs passed Order in Original (OIO) being OIO which was ex parte without availing any opportunity of hearing. The petitioner also did not receive a copy of the show cause notice nor any notice for personal hearing. The penalty was imposed by the Principal Commissioner of Customs.
The application for waiver of condition of pre-deposit of 7.5% penalty as per the Clause-II of section 29E of the Customs Act was moved along with the appeal .The petitioner’s passport was taken away from him, as result of the exparte order.
Amal Paresh Dave on behalf of the petitioner claimed that, IO passed by Principal Commissioner was ex facie illegal and it was in utter disregard to the principles of natural justice. Moreover, the penal liability on the petitioner was on the basis of the statement of persons without any independent corroboration and that itself is an illegal act. This happened without being given any opportunity of being heard.
Mitesh R Amin, who appeared for the state submitted that, The provision of pre-deposit is mandatory under section 129E of the Customs Act as petitioner smuggled huge quantities of gold, and opportunities of personal hearing had been granted but petitioner had not attended
The Division Bench of Justice Sonia Gokani and Justice Gita Gopi observed that, “With regard to non-availment of opportunity for want of necessary pre-deposit required under section 29E of the Customs Act, the appellate authority could not adjudicate on merits. Therefore, we are of the opinion that the balance needs to be struck by allowing the petitioner to approach the appellate authority by furnishing the amount of pre deposits of the requisite amount. Resultantly, without making any interference with the OIO, all the petitioners are permitted to approach the appellate authority.”
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