TMI Blog2016 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner assessee. To say the least, there was not only a breach of principles of natural justice but the said communication also smacks of arbitrary act and non-application of mind by the learned Commissioner of Customs. The reconciliation of the deposits and the extent of pre-deposit required to be made for maintaining the present appeal in question before the CESTAT under S.129E of the Customs Act itself required the consideration of these facts by the said authority because this Court cannot undertake this exercise here in the present writ petition. Therefore, the matter would essentially require a remand back to the learned Commissioner to decide the representations of the petitioner assessee once again, after giving him an opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on 18.9.2014 aggrieved by Annexure C the Adjudication Order dated 26.3.2014 and demand notice for ₹ 8.31 crores served upon the assessee requiring the petitioner assessee to make a deposit of 10%/7.5% as pre-deposit for maintaining the said appeal under S.129E of the Customs Act. But the assessee made a representation to the respondent Commissioner of Customs, Mangalore vide Annexure E dated 4.8.2015 that a sum of ₹ 1,49,59,384/- on account of various deposits made by him while the matters were under Investigation Audit pending before the respondent authorities and a part of that amount may be treated and adjusted against the aforesaid pre-depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the amended provisions of S.129 E of the Customs Act, 1962, substituted by Finance (No.2) Act, 2014 and which deals with the requirement of pre-deposit of certain percentage of duty demanded or penalty imposed impugned in the appeal, the CESTAT does not have any discretion to waive of or dispense with the said requirement of pre-deposit of 10% if the order impugned is passed under S.129A of the Customs Act or 7.5% if the order has been passed under clause (a) under S.128-1 of the Customs Act by the lower authority and therefore, in these circumstances, since the respondent Department already had an excess amount of duty paid by the assessee subject to Investigation and Audit in the proceedings pending before the competent authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit with the respondent Customs Department, the Tribunal itself was the competent authority to pass any such order and not the Commissioner of Customs. He, therefore, submitted that the petitioner should be relegated to the CESTAT itself. 7. I have heard the learned counsels at length and perused the record. 8. The Tribunal, created under S.129 of the Customs Act, 1962 provides a remedy by way of second appeal to the assessee, the first appeal lying before the Commissioner(Appeas)I under S.128 of the Act. The provisions of S.129E of the Customs Act which requires such pre-deposit of part of the disputed demand before the Tribunal and which is relevant for the present purpose is quoted below for ready reference: S.129 E: Deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waive such condition of pre-deposit, has no longer any such power and therefore, the argument of the learned counsel for Revenue that the petitioner should be relegated back before the Tribunal to consider this aspect of the matter is without any merit in view of the amendment in law and deserves to be rejected. The same is accordingly, rejected. 10. As far as the compliance with the requirement of pre-deposit is concerned, the representations made by the petitioner assessee before the learned Commissioner of Customs was simple that certain amounts had been deposited by the assessee pending Investigation Audit and no demand was yet raised and set off against such deposits and therefore, a part of which could certainly be treated as pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by it, since on the result of that order depended a substantive right of the assessee to maintain his appeal before the CESTAT in terms of S.129 E of the Customs Act. 12. No public authority or public servant much less a quasi-judicial authority like the Commissioner of Customs can be allowed or permitted to pass these kind of communications or direct their subordinates to communicate such orders in the aforesaid kingly manner. This Court, therefore, records its displeasure on the tenor of the communication Annexure F dated 12.8.2015 given to the petitioner assessee. To say the least, there was not only a breach of principles of natural justice but the said communication also smacks of arbitrary act and non-application of mind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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