Bharat Poonamchand Jain v. Union Of India Thru. Secretary And ORS

2025:BHC-AS:44880-DB Sayyed 18-WP.13177.2025.docx IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.13177 OF 2025 WRIT PETITION NO.13177 OF 2025 Bharat Poonamchand Jain Bharat Poonamchand Jain

...Petitioner

...Petitioner

Versus

Versus

Union of India & Ors.

Union of India & Ors.

...Respondents

...Respondents

_____________________________________________________ Mr. Murtaza Najmi a/w Mr. Jackie Jain, Mr. Dilip Shukla, Adv. Nancy Mr. Murtaza Najmi a/w Mr. Jackie Jain, Mr. Dilip Shukla, Adv. Nancy Kanungo & Ms. Priya for the Petitioner.

Kanungo & Ms. Priya for the Petitioner.

_____________________________________________________ CORAM :

M. S. Sonak & Jitendra Jain, JJ.

DATED : 13 October 2025 ORAL ORDER:-(Per M. S. Sonak, J.) 1.

Heard Mr. Najmi for the Petitioner.

Heard Mr. Najmi for the Petitioner.

2.

The challenge in this petition is to the Order-In-Original dated The challenge in this petition is to the Order-In-Original dated 1 August 2025.

1 August 2025.

3.

In paragraphs 19 and 20, the Petitioner has made bald In paragraphs 19 and 20, the Petitioner has made bald averments stating that he has no other efficacious remedy available to averments stating that he has no other efficacious remedy available to him. The impugned orders themselves point out that they are him. The impugned orders themselves point out that they are appealable. Therefore, such averments should never have been made by appealable. Therefore, such averments should never have been made by the Petitioner in this petition.

the Petitioner in this petition.

4.

To To address these false averments, the learned counsel for the address these false averments, the learned counsel for the Petitioner, on instructions, argues that the Petitioner is merely an Petitioner, on instructions, argues that the Petitioner is merely an employee and lacks the financial means to deposit employee and lacks the financial means to deposit Rs.18 lakhs as a pre18 lakhs as a predeposit for instituting an appeal. In this case, the Petitioner was alleged deposit for instituting an appeal. In this case, the Petitioner was alleged to be involved in the smuggling of Silver Jewellery of 1179 Cartons to be involved in the smuggling of Silver Jewellery of 1179 Cartons corresponding to 14249.00 kg. By considering the Petitioner's role, a corresponding to 14249.00 kg. By considering the Petitioner's role, a penalty of approximately Rs. 2.3 crores has been imposed upon the penalty of approximately Rs. 2.3 crores has been imposed upon the Petitioner.

Petitioner.

Sayyed 18-WP.13177.2025.docx 5.

In the entire petition, there are no averments about the In the entire petition, there are no averments about the Petitioner's financial capacity. If the contentions now advanced across Petitioner's financial capacity. If the contentions now advanced across the bar had some merit, then at least some averments were necessary in the bar had some merit, then at least some averments were necessary in the petition backed by proper material in support of the same. Instead, the petition backed by proper material in support of the same. Instead, the Petitioner, by making a bald averment that he has no other alternate the Petitioner, by making a bald averment that he has no other alternate or efficacious remedy, has instituted this petition. or efficacious remedy, has instituted this petition. 6.

The learned counsel for the Petitioner has tried to argue the The learned counsel for the Petitioner has tried to argue the matter on merits by submitting that the sections that have been invoked matter on merits by submitting that the sections that have been invoked against the Petitioner were not applicable. He also tried to explain a against the Petitioner were not applicable. He also tried to explain a complicated transaction involving cash payment. We cannot investigate complicated transaction involving cash payment. We cannot investigate all these matters in the exercise of our summary and extraordinary all these matters in the exercise of our summary and extraordinary jurisdiction under Article 226 of the Constitution of India. Besides, once jurisdiction under Article 226 of the Constitution of India.

Besides, once the law has provided the Petitioner with the statutory remedy to appeal the law has provided the Petitioner with the statutory remedy to appeal such orders, unless an exceptional case is made out, there is no question such orders, unless an exceptional case is made out, there is no question of entertaining this petition.

of entertaining this petition.

7.

In the case of In the case of Oberoi Constructions vs. Union of India & Ors. Oberoi Constructions vs. Union of India & Ors.1 We have discussed in detail the law relating to exhaustion of alternate We have discussed in detail the law relating to exhaustion of alternate remedies, wherein we have also referred to several precedents of the remedies, wherein we have also referred to several precedents of the Hon'ble Supreme Court as to the circumstances in which petitions could Hon'ble Supreme Court as to the circumstances in which petitions could be entertained despite the existence of alternate statutory remedies. be entertained despite the existence of alternate statutory remedies. Relying upon the reasoning in the said decision as also the reasoning in Relying upon the reasoning in the said decision as also the reasoning in the precedents referred to therein, we decline to entertain this petition. the precedents referred to therein, we decline to entertain this petition. 8.

The learned counsel for the Petitioner states that we must The learned counsel for the Petitioner states that we must consider waiving the pre-deposit consider waiving the pre-deposit requirement, and the Petitioner is requirement, and the Petitioner is ready and willing to make a pre-deposit of Rs.5 lakhs as against the ready and willing to make a pre-deposit of Rs.5 lakhs as against the requirement of Rs.18 requirement of Rs.18 lakhs. Such a submission also cannot be accepted lakhs. Such a submission also cannot be accepted because it contradicts the provisions of Section because it contradicts the provisions of Section 129E 129E of the Customs of the Customs (2025) 137 GSTR 601 (2025) 137 GSTR 601

Sayyed 18-WP.13177.2025.docx Act, 1962, which not only contemplates a pre-deposit but also provides Act, 1962, which not only contemplates a pre-deposit but also provides for no waiver.

for no waiver.

9.

In the case of In the case of Kotak Mahindra Bank Pvt. Ltd. vs. Ambuj A. Kotak Mahindra Bank Pvt. Ltd. vs. Ambuj A.

Kasliwal & Ors Kasliwal & Ors.2, the Hon'ble Supreme Court has held that the High , the Hon'ble Supreme Court has held that the High Court should not direct the Appellate Authority to admit and hear Court should not direct the Appellate Authority to admit and hear appeals unaccompanied by the minimum pre-deposit requirements appeals unaccompanied by the minimum pre-deposit requirements under the statute. The Hon'ble Supreme Court has held that the under the statute. The Hon'ble Supreme Court has held that the discretion under Article 226 of the Constitution of India cannot be discretion under Article 226 of the Constitution of India cannot be exercised against the mandatory requirement of statutory provisions. exercised against the mandatory requirement of statutory provisions. 10.

In the case of In the case of Manjeet Singh vs. Union of India Manjeet Singh vs. Union of India3, the Co- , the Coordinate Bench of this Court declined to grant a waiver of the minimum ordinate Bench of this Court declined to grant a waiver of the minimum pre-deposit of 7.5% of the penalty under Section 129E of the Customs pre-deposit of 7.5% of the penalty under Section 129E of the Customs Act. This decision considers several contentions and precedents on the Act. This decision considers several contentions and precedents on the subject.

subject.

11.

For the above reasons, we decline to entertain this petition For the above reasons, we decline to entertain this petition and relegate the Petitioner to the alternate remedy of an appeal, if the and relegate the Petitioner to the alternate remedy of an appeal, if the Petitioner chooses to avail themselves of it. However, suppose the Petitioner chooses to avail themselves of it. However, suppose the Petitioner institutes an appeal within four weeks from the date of Petitioner institutes an appeal within four weeks from the date of uploading of this order by complying with all statutory requirements uploading of this order by complying with all statutory requirements like pre-deposit, etc.. In that case, the Appellate Authority must consider like pre-deposit, etc.. In that case, the Appellate Authority must consider the appeal on merits without adverting to the issue of limitation. the appeal on merits without adverting to the issue of limitation. 12.

With the above liberty, we dispose of this petition without any With the above liberty, we dispose of this petition without any order for costs.

order for costs. All concerned must act on an authenticated copy of this All concerned must act on an authenticated copy of this order.

order.

(Jitendra Jain, J.) (M. S. Sonak, J.) 2021 3 SCC 549 2023 (383) ELT 308 (Bombay) Signed by: Sayyed Saeed Ali Designation: PA To Honourable Judge Date: 15/10/2025 15:30:17