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2017 (7) TMI 832 - HC - CustomsTime limitation - condonation of delay - the appeals initially, though filed in a letter format, were presented within the period of limitation. However, upon the error being pointed out to the appellants, the appeals were filed in the prescribed format, albeit, beyond the original period of limitation, but, within the condonable period i.e., within 90 days from the date of receipt of the order - whether or not, the appeals which were lodged by the appellants within the condonable period, i.e., beyond the period of limitation of 60 days, but, within the period of 30 days thereafter, could be rejected, on the ground that when the pre-deposit of 7.5% of the penalty was made the condonable period had already expired? Held that: - The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provided sufficient cause is shown for the delay in presenting the appeal. Section 129 E (i) on the other hand, provides that the second respondent shall not entertain any appeal under sub-section (1) of Section 128, unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an Officer of Customs, lower than the rank of Commissioner of Customs. A plain reading of the expression, 'presenting' which obtains, in proviso to Section 128 (1), as against 'entertain' which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act. Circular dated 14.10.2014, sensu stricto applies only vis-a-vis appeals filed with the Tribunal. Therefore, according to the procedure prescribed in the said Circular, the appellants are required to be given, at least three opportunities for processing necessary evidence of having made the prescribed mandatory pre-deposit. The second respondent could not have dismissed the appeals, on the ground that the prescribed mandatory pre-deposit was made, beyond the condonable period - appeal allowed - decided in favor of appellant.
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