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2021 (5) TMI 459 - HC - CustomsConfiscation - Smuggling - Gold Bars - rejection also on the ground of non-compliance of the provisions of Section 129-E of the Act - order passed under the Act by an officer of the Customs, lower in rank than the Principal Commissioner of Customs or Commissioner of Customs, to file appeal before the Commissioner (Appeals) - HELD THAT:- In the instant case, though the petitioner herein initially filed appeal on 17.08.2020, before the third respondent, it is clear from Form-CAI that the appellant undertook to pay the mandatory pre-deposit of 7.5% of the disputed amount but did not make any deposit to the said effect. Obviously, on the ground that the petitioner herein failed to comply with the above referred mandatory requirement of pre-deposit, the third respondent-appellate authority, by way of the order, dated 03.11.2020, rejected the appeal filed by the petitioner herein in limini on the sole ground of non-compliance of the provisions of Section 129-E of the Act. It is also not in controversy that once again on 03.12.2020, by complying with the said mandatory requirement, as stipulated under Section 129-E of the Act, petitioner herein preferred the appeal. The filing of appeal in the instant case would not be regarded as filing of appeals repeatedly since the earlier order came to be passed by the third respondent not on merits but only on the sole ground of failure on the part of the petitioner herein to comply with the mandatory requirement of law but not on merits. In the considered opinion of this Court, the said order, dated 03.11.2020, by any stretch of imagination, cannot be regarded as the order on merits but is only an order refusing to entertain the appeal. Therefore, the contention of the learned Senior Standing Counsel that the petitioner herein is required to be relegated to the alternative remedy of appeal to the CESTAT cannot be sustained and is, accordingly, rejected. The appeal filed by the petitioner herein on the file of the third respondent on 03.12.2020 stands restored to file for consideration of the same by the third respondent, strictly in accordance with law, on merits after giving opportunity of being heard to the petitioner before passing appropriate orders - Petition allowed.
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