The Delhi High Court has permitted an appeal of poor daily-wage workers who were objecting to the seizure of their goods without requiring a pre-deposit.
A prerequisite for filing an appeal may occasionally be imposed by the statute, observed Justices Rajiv Shakdher and Tara Vitasta Ganju’s bench.
A requirement that is excessively onerous, however, will make the right to appeal void.
The petitioners, who are not well-educated young people, come from low-income households and reside in Islam Nagar, Hojai, Assam and make a living through agriculture and the sale of modest amounts of agarwood.
The petitioners claim that the items seized by the customs officials were their purchases, and that the receipts were included in the response to the show cause notice.
The petitioners claimed that the penalty had been imposed based on an inaccurate assessment of the seized commodities, which had been mistakenly valued at a very high market value.
It is further claimed that because they are not financially stable, they are unable to pay the obligatory pre-deposit needed to contest the charge and hence cannot exercise their right of appeal under Section 129E.
The petitioners have challenged the constitutional validity of Section 129E.
It is their argument that it is free and not restricted to export cultivated kinds of agarwood chips and oil.
The petitioners relied on Notification No. 45/2015-2020 dated November 29, 2021, on the Amendment in the Export Policy of Agarwood Oil and Agarwood Chips and Powder, stating that it is only by the amendment of the policy that the seized products have become prohibited.
However, at the time of the seizure by the customs authorities on September 20, 2019, the policy was not in force.
The department argued that agarwood falls under Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora as an endangered species and is so protected.
It relied on the Wildlife Inspector’s preliminary examination report, dated September 20, 2019. According to the report, the species of agarwood that were seized are forbidden from being exported and are listed in Appendix II of CITES.
As per the District Magistrate’s Report, the petitioners do not have the financial wherewithal to make a pre-deposit as is required under Section 129E of the Customs Act.
The court has held that the department has not placed on record any document in support of the value or price of the agarwood chips and agarwood oil, which were “provisionally” valued at Rs 5, 00, 000 per kg and Rs 8, 00, 000 per kg, respectively, to levy the penalty on the petitioners.
The order arrived at the valuation without any discussion on the price. It also relied on the report of the wildlife inspector, which also does not mention any price but clearly mentions that there were different grades of agarwood chips seized.
No final report on the value or price of the variety of agarwood chips and agarwood oil seized is placed on record or even relied upon by the respondents.
The court noted that the valuation of the goods seized is also not in terms of the prices as set forth in the Assam government’s Agarwood Policy.
No proper calculation has been made for the penalty levied. The penalty imposed on the petitioners has been imposed based on a provisional valuation. The penalty imposed is therefore without any legal basis and cannot be sustained.
“Therefore, given the financial position and the wherewithal of the Petitioners, an opportunity needs to be given to them to contest the valuation so imposed by the Respondents, which otherwise cannot be contested by them. Thus, we consider the case of the petitioners to be an appropriate case to exercise our discretion in the matter concerning waiver of pre-deposit of penalty, ” the court said.