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2015 (12) TMI 931 - GUJARAT HIGH COURT

2015 (12) TMI 931 - GUJARAT HIGH COURT - 2016 (331) E.L.T. 239 (Guj.) - Waiver of pre-deposit - mandatory or not - Recovery of custom duty - Held that:- Since there was only one show cause notice which resulted into one order of adjudication passed by the Commissioner, we wonder whether the petitioner was even obliged to file a separate appeal. Insofar as the petitioner is concerned, it received one show cause notice and was visited with one final order of adjudication. Its liability, therefore, .....

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original date of filing the appeal. The issue can be seen from another angle. If by the time the petitioner presented the fresh appeal within the time permitted and directed by the Tribunal, the period of limitation had expired, would such appeal be rejected as time-barred.

It becomes clear that the amended section 129-E of the Customs Act with effect from 06.08.2014 would not apply to both the appeals of the petitioner which are pending before the Tribunal. The petitioner would, th .....

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J. For the Appellant : Mr Anand Nainawati, Adv. For the Respondent : Ms Manisha Shah, Adv. JUDGMENT ( Per : Honourable Mr. Justice Akil Kureshi ) 1. Heard learned counsel for the parties. Petitioner/assessee has challenged order dated 25.11.2014 as at Annexure-A to the petition passed by the Customs, Excise & Service Tax Appellate Tribunal ("the Tribunal" for short) in the following background. 2. The Department of Customs & Central Excise had issued a show cause notice against .....

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hout any distinction regarding directions for payment of duties and penalties under the Central Excise Act or the Customs Act. Upon perusal of appeal memo, it clearly emerges that the petitioner had filed one single consolidated appeal against the order of the adjudicating authority. His prayer was to quash and set aside the entire order. The grounds raised in the appeal were also directed against both kinds of duties and penalties. 3. The Tribunal, however, issued a memo on 24.07.2014 and raise .....

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lication for stay/pre-deposit waiver. 5. Section 129-E of the Customs Act 1962 pertained to deposit, pending appeal, of duty and interest demanded or penalty levied. Prior to 06.08.2014, this provision read as under: "SEC. 129E. Deposit, pending appeal, 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 and interest demanded in respect of goods which are not under the control of the customs aut .....

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pellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. " This sect .....

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er of Customs or Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of subsection (1) of section 129-A, unless the appellant has deposited seven and a half per cent 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; (iii) against the decision or order referred to clause (b) of subsection (1) of section 129-A, unless the appellant has deposited .....

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on 129-E of the Customs |Act, before and after the amendment, it can be seen that, prior to 06.08.2014 it was open for an assessee to seek waiver of pre-deposit before the appellate authority or the Tribunal in its entirety. After the amendment on 06.08.2014, the statutory provision requires mandatory pre-deposit of 7.5% of the value of the duty, with or without penalty, as the case may be, leaving no discretion to the appellate authority to waive such requirement in order to entertain an appeal .....

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enalty, though was re-presented on 11.08.2014, it was nothing but a continuation of earlier appeal already filed long before section 129-E was amended with effect from 06.08.2014. Section 129-E makes it clear that the amended provision would not apply to any appeal or stay petition already pending when this section was amended. 9. On the other hand, learned counsel Ms.Manisha Shah for the Department opposed the petition contending that in clear terms the appeal or the pre-deposit waiver applicat .....

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e Acts. It was the Tribunal who raised objection and insisted that the petitioner files a separate appeal under the Customs Act. The petitioner thereupon presented a fresh appeal on 11.08.2014 along with stay petition. 11. In our opinion, this presentation of fresh appeal by the petitioner before the Tribunal on 11.8.2014 must be viewed in the backgrounds of the facts of the case and must be treated as continuation of the original proceedings filed before the Tribunal instituted by the petitione .....

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