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2019 (10) TMI 430 - HC - CustomsMaintainability of petition - compliance with the requirement of pre-deposit - Maintaining the Bank guarantees further - direction to the respondents 2 & 3 to discharge the remaining bank guarantees to the petitioner. Whether the petitioner is entitled to seek for return of the remaining bank guarantees over and above the sum representing 7.5% of the duty demand towards pre-deposit as contemplated under Section 129E of the Customs Act, 1962, while preferring the appeal before the CESTAT? HELD THAT:- It is seen that as against the order of adjudication, the petitioner has already approached CESTAT and filed the appeal. There is no dispute to the fact that pending disposal of the appeal, the mandatory requirement for the petitioner is to make pre-deposit of 7.5% of the duty demand. It is also not in dispute that the said mandatory requirement of pre-deposit of 7.5% of the duty demand has also been met with by the petitioner by enforcement of three bank guarantees to the tune of ₹ 1,08,40,000/- and also by appropriation of ₹ 26 Lakhs, already paid by the petitioner on 16.02.2009 - Therefore, it is evident that the statutory requirement of making pre-deposit pending disposal of the appeal has been met with by the petitioner. When such being the factual position, it is to be seen as to whether the respondent/Revenue is entitled to direct the petitioner to keep the remaining bank guarantees alive pending disposal of the appeal. The claim made by the petitioner before this Court that the respondents are not entitled to seek for keeping remaining bank guarantees alive, cannot be sustained for the simple reason that the order of adjudication put to challenge before the Tribunal includes a direction for enforcement of all 29 bank guarantees totally valued at ₹ 3,44,16,000/-, which has to be considered and decided only by the Tribunal. At this juncture, it is relevant to note that making a pre-deposit of 7.5% of the duty demand is the statutory obligation of the appellant/petitioner to maintain the appeal before the appellate forum. Compliance of such statutory requirement itself, cannot be stated as the reason for returning any balance money lying in the hands of the Revenue, which was collected during pendency of the adjudication proceedings, especially, when the Revenue has succeeded, before the Adjudicating Authority in confirming the demand. Therefore, the Revenue cannot be faulted in either retaining the money pending disposal of the appeal or asking the appellant/petitioner to keep the bank guarantees alive. The very agreement of the Revenue to make adjustment of the sum equivalent to 7.5% of pre-deposit out of such bank guarantees itself, is a concession shown and therefore, the petitioner should be satisfied with the same. Petition dismissed.
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