CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL MUMBAI WEST ZONAL BENCH CUSTOMS APPEAL NO: 85156 OF 2026 [Arising out of Order-in-Appeal No: MUM-CSTM-PAX-APP-487 to 849/2023-24 dated 21^st September 2023 passed by the Commissioner of Customs (Appeals), Mumbai – III.]

Anirudh Verma RE-8, Raghunathpur House Complex, Near Avenue Nursing Home, VIP Road, Kolkata … Appellant versus Commissioner of Customs (Preventive)

New Customs House, Ballard Estate, Mumbai - 400001 …Respondent APPEARANCE:

Shri Vineet Singh, Advocate for the appellant Shri CS Vinod, Assistant Commissioner (AR) for the respondent CORAM:

HON’BLE MR C J MATHEW, MEMBER (TECHNICAL) HON’BLE MR AJAY SHARMA, MEMBER (JUDICIAL)

FINAL ORDER NO: 85156/2026 DATE OF HEARING: 08/01/2026 DATE OF DECISION: 27/01/2026 PER: C J MATHEW There can be no two opinions that, after amendment¹ of 129E of Customs Act, 1962, appeal is maintainable before the Commissioner of

1 [Finance (No. 2) Act, 2014 dated 6th August 2014]

Customs (Appeals) or the Tribunal only upon deposit of prescribed percentage of duty and penalty or percentage of penalty, as the case may be. The decision² of the Hon’ble Supreme in Chandra Sekhar Jha v. Union of India leaves no room for doubt on the strict adherence thereto. But then, we do not have application of waiver of pre-deposit before us. Nor are we unmindful that indulgence of waiver sought by appellant, from compulsion of circumstance, is beyond the control of a creature of the statute to even consider. The decision of the Hon’ble High Court of Bombay in Lalit Kuthia v. Commissioner of Customs (Appeals), Mumbai-III [2024:BHC-OS:20290] has acknowledged extraordinary circumstances that may merit such dilution. But then, we do not have before us any application pleading such occurrence.

2. On the other hand, we have before us the principle espoused in Rodex International v. Commissioner of Customs in order³ of Hon’ble High Court of Gujarat that goods are good substitute for money deposit. And that is the claim of the appellant in responding to objection on defect raised by Registry for not having deposited the amount stipulated in section 129E of Customs Act, 1962 towards disputed confiscation of gold bars valued at ₹ 3,17,16,000 under section 111 of Customs Act, 1962 and penalty of ₹ 16,00,00,000 each under section 112 and section 114AA of Customs Act, 1962. On perusal of the records, we take note

2 [order dated 28th February 2022 in civil appeal no. 1566 of 2022]

3 [order dated 4th February 2016 in tax appeal no. 1163 of 2014]

that Commissioner of Customs (Appeals), before whom first challenge was preferred, had, by order⁴, dismissed the challenge at the threshold for that very want.

3. Learned Counsel for appellant countered the objection with the submission that the appeal in question challenges the confiscation of seized gold belonging to appellant along with penalty and, therefore, there is no call to disaggregate the penalty for separate compliance with section 129E of Customs Act, 1962. It was further contended that seizure of goods that were not released to them, as yet, is no different from deposit of disputed duty during the course of investigations that gets appropriated. He submitted that the penalty imposed under section 112 of Customs Act, 1962 is not by transitive association with confiscated goods but direct ownership of the seized gold.

4. Learned Authorized Representative cited before us the inflexibility of section 129E of Customs Act, 1962 after amendment of 2014 that precludes any discretion available with the Tribunal for foregoing pre-deposit. He further argued that, with the gold having been absolutely confiscated, only penalty remained at stake and that confiscation, or fine in lieu thereof, is beyond the pale of pre-deposit provisions.

4 [Order-in-Appeal No: MUM-CSTM-PAX-APP-487 to 849/2023-24 dated 21st September 2023]

5. Normally, at this stage of notice of non-maintainability, we do not look to the facts but here we are compelled to in the light