Mandatory pre-deposit under Section 129E of the Customs Act is applicable and cannot be waived based on the petitioner's financial condition.

ORDER :

(Bhargav D. Karia, J.)

1. Heard learned Senior Advocate Mr. N.D.Navati with learned advocate Mr. Bomi Sethna for the petitioner.

2. By this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs :

“(a) That this Hon’ble Court be pleased to issue a writ in the nature of Declaration or an appropriate writ, order or direction holding and declaring that the requirement of mandatory pre-deposit under Section 129-E of the Act is not applicable in the facts and circumstances of the present case and in respect of Appeal bearing No. 1669 of 2023 pending before the Respondent No.2;

(b) That this Hon’ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of mandamus, or any other appropriate Writ, Order or directions directing the Respondent No.2 its officers, servants, agents etc to admit and dispose of the pending Appeal bearing No. 1669 of 2023 without insisting for payment of the mandatory pre-deposit under section 129-E of the Act;

(c) In the alternate to the prayer clause (a) and (b) above, that this Hon’ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of mandamus, or any other appropriate Writ, Order of directions, directing the Respondents its officers, servants, agents etc to release the confiscated goods pertaining to shipping bills no. 4004674 dated 21.05.2021 and 4004784 dated 25.05.2021 without insisting for redemption fine to enable the petitioner to make the payment of mandatory pre-deposit under section 129-E of the Act;

(d) That pending the hearing and final disposal of the present Writ Petition, this Hon’ble Court be pleased to issue writ of Mandamus, or a writ in the nature of mandamus, or any other appropriate Writ, Order or directions, directing the Respondents, its officers, servants, agents etc. to keep operation of the Impugned order being Order-in-original bearing No. 32/AKS/ADC/SRT/2022-23 dated 15.12.2022 (Annexure A) in abeyance and not to act or adopt any action against the Petitioner in the course of furtherance of the impugned order.

(e) for ad-interim reliefs in terms of the prayers above;

(f) for dispensation with the service of the prior notice to the respondents;

(g) costs of the petition and orders thereon; and

(h) such further and other reliefs, as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case, and in the interest of justice.”

3. The petitioner has challenged the Order-in-Original dated 15.12.2022 passed by the Additional Commissioner before the appellate authority.

4. The petitioner obtained an approval from the competent authority i.e. Development Commissioner, Surat SEZ, Sachin for manufacture and export of Cut and polished lab grown diamonds from rough lab grown diamonds as per letter of approval dated 15.02.2021.

5. The petitioner was also permitted to procure rough lab grown diamonds for manufacture of cut and polished lab grown diamonds.

6. The petitioner by letter dated 02.03.2021 intimated to the Development Commissioner, Surat SEZ, Sachin, that the petitioner has commenced business activities from their unit from 25.02.2021. The Customs Department withheld two consignments pertaining to Shipping Bills No. 4004674 dated 21.05.2021 and Shipping Bill No. 4004784 dated 25.02.2021 on 27.05.2021 on the basis of certain information.

7. Upon investigation it was concluded that the goods were attempted to be improperly exported by the petitioner are cut and polished natural diamonds and not cut and polished lab grown diamonds. Accordingly, the total quantity of 58089.13 carats recovered as against 23301.75 carats declared on the Shipping Bills having total value of Rs. 2,04,62,84,341/- as against value of Rs. 2,93,22,613/- declared on the shipping bills.

8. After issuing a show-cause notice and giving opportunity of hearing to the petitioner, the Order-in-Original was passed by the Additional Commissioner of Customs, Surat, dated 15.12.2022 as under:

“order

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