TMI Blog2010 (10) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... following three questions : "(a) Whether the CESTAT was correct in holding vide Order dated 16-4-2009, that pursuant to the remanding back the matter to the Commissioner of Customs (Appeals) vide the CESTAT's Order dated 13-12-2005, the refund-liability arises in favour of the respondents and the amount of duty paid by the respondents till then to be treated automatically as pre-deposit, whereas as per the facts of the case the said amount of duty was not paid by the respondents as pre-deposit in terms of Section 129-E of the Customs Act, 1962, but in pursuance of the OIO No. 238 to 248/SBY-De novo/2000-01 dated 19-3-2001 passed by the Deputy Commissioner of Customs, Bhavnagar? (b) Whether in the facts and circumstances of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct quantity and value of the imported goods?" 2. Without going into the chequered history of the case which is chronologically set out in the impugned order of the Tribunal, the basic facts necessary for determination of the controversy in issue are that vide order dated 19-3-2001 made by the adjudicating authority duty demand came to be confirmed against the respondent. The appeal against the said order came to be dismissed for non-payment of the amount of pre-deposit. Ultimately, the matter was carried up to the Supreme Court. During the period September, 2004 to November, 2004, the respondent-assessee deposited the entire demand made under the order in original when the Special Leave Petition to file appeal against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should be adjusted against duty of Rs. 16,21,583/- already paid by the assessee. It was directed that the excess duty amounting to Rs. 6,99,797/- would be admissible for refund subject to the fulfillment of the conditions under Section 27 of the Act and that the assessee may file refund claim if so desired. Against the order of the Adjudicating Authority, the assessee preferred the appeal before Commissioner (Appeals) who dismissed the appeal. The assessee carried the matter in second appeal before the Tribunal which came to be allowed. 4. The learned Senior Standing Counsel for the appellant has assailed the impugned order of the Tribunal submitting that amount paid by the assessee was towards the demand of duty and was not by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, of duty and interest demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty in interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty in interest demanded or the penalty levied : Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty in interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment prescribed by legislature with an intention to protect interest of Revenue. 7. However, if the person desirous of preferring appeal seeks waiver of the pre-deposit on the ground of undue hardship as contemplated under sub-section (2) of Section 129E, he is required to file an application seeking dispensation of such deposit, in which case he is required to make the pre-deposit in terms of the order that may be passed by the Commissioner (Appeals) or the Appellate Tribunal. Thus, the contention that it is only the payment made pursuant to any order of any appellate authority or judicial forum under Section 129E or Section 131 of the Act would fall within the ambit of pre-deposit under the said provision is fallacious and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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