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2014 (12) TMI 814 - CESTAT MUMBAIWaiver of pre-deposit - appellant submits that there is no quantification of any duty liability in the impugned order and, therefore, the appellant is not required to make any pre-deposit - Held that:- As per the amended provisions, the appellant is required to deposit 10% of the duty, in case where duty or duty and penalty are in dispute or penalty where such penalty is in dispute, in pursuance of the decision or order appealed against. The meaning of the expression “in pursuance” is “that which follows” or “in consequent upon a thing”, “a consequence”. Therefore, if as a consequence of the order, duty liability arises, pre-deposit of 10% of the duty liability has to be made before an appeal against the order can be considered. In pursuance of the order of the appellate authority dated 03/06/2014, the value has to be re-determined taking into account the difference in the commercial levels between imports made by the appellant and identical imports made by others. On account of such re-determination, there may be liability to pay additional duty which has not been quantified and discharged. It is not the case of the appellant that in pursuance of the above order there would not be any differential duty liability. From a plain reading of the amended Section 129E of the Customs Act, 1962 to consider an appeal at the second appellate stage against an order of the lower appellate authority, 10% of the duty or penalty arising in pursuance thereof has to be pre-deposited. In other words, the law envisages that the pre-deposit has to be made. This mandate of law cannot be wished away. Therefore, the applicant is directed to approach the adjudicating authority for re-quantification of the duty liability in terms of the lower appellate authority's order and if they are still aggrieved, to come before this Tribunal, after making pre-deposit of the difference of duty so determined. - Decided in favour of assessee.
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