TMI Blog2018 (7) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... liance of certain conditions, the right of Appeal available under the statute can be availed, then it is imperative that those conditions/stipulations must be strictly adhered to and complied with. Section 129 provides conditional right of Appeal in respect of an Appeal against the duty demanded or penalty levied - If the mandate of the statute requires to make pre-deposit of some amount as a condition precedent, entertainment of an appeal by the appellate authority, then, compliance of the said condition is mandatory and we need not dilate on the settled positiion, which is also not disputed by the learned counsel for the petitioner. It is apparent from record that when the petitioner filed an appeal, the address that was tendered was at G.I.D.C, Makapur, Baroda and when the order is passed on 12th September 2012, the said order has been forwarded to the petitioner at the same address i.e. M/s.India Medtronic Pvt. Ltd, 919/2, GIDC Estate, Makarpura, Baroda 390 010, and also to the Willingdon and Associates, Trident 'C' Block, 3rd floor, Opp GERI Compound, Race Course, Vadodara - It is thus clear that the said order which has been passed on 13th September 2012 making the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and the Additional Duty under section 3(1) of the Customs Tariff Act, 1975. The petitioner has produced on record a copy of the Bill of Entry in relation to the said goods dated 7th June 2001. It is the case of the petitioner that the goods were assessed provisionally and he was allowed to clear the goods on the basis of Provisional Duty Bond at nil rate of duty by extending the benefit of Notification no.17/2001-CUS dtd.1/3/2001. The petitioner was assessed finally vide Order-in-Original passed by the Dy. Commissioner of Customs, Mumbai and the demand of ₹ 29,41,301 along with interest, was confirmed against the petitioner. The petitioner was, however, denied the benefit of exemption under notification no.17/2001Cus on the ground that the party had brought A.V. Tubings, although of medical grade but in running length, it needs to be cut into pieces subsequently so as to make it usable as an accessory for medical machines. The Order-in-Original recorded that the A.V. Tubings in the running length is not a complete accessory but an intermediate product for accessory and would not fall within the ambit and scope of the Custom notification dated 1st March 2001 at Serial No.3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo. The respondent no.3 took up the matter for hearing on 14th May 2012 when the petitioner was represented by a counsel for conduct of personal hearing. The counsel for the petitioner placed reliance on various case laws and made an earnest request to withdraw the interim order passed on 22nd March 2012. The respondent no.3 took note of the contention raised before him and was pleased to modify its interim order by directing the appellant to deposit 50% of the demand confirmed within two months from the date of the issue of the order. The respondent no.3 made the following observation in its order dated 16th June 2012. Shri Mayur Shroff, Advocate, appeared on 14.05.2012 before me for personal hearing. The applicant placed reliance on the various case laws covering directly the issue involved. The party requested for the withdrawal of the Interim Order No.15 dated 22.03.2012 on facts and merits. I note that the party's contention regarding the personal hearing and authorized representative appearing for the same is correct and allow modification of the same accordingly. The party has submitted the following case laws in their support in 2001(134) ELT 696(T) Olympic P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition by which the respondent no.4 has instructed all the field officers to recover the demand confirmed by the Order-in-Original dated 21st August 2009 from all the monies payable to the petitioner. It further instructed to recover the said amount by detaining and selling the goods belonging to the petitioner. The petitioner attempts to canvass before us that when he approached the respondent no.3 inquiring about the status of his Appeal assailing the Order-in-Original dated 21st August 2009, he was made to understand that subsequent, to the order dated 13th September 2012, no further order has been passed by respondent no.3 on the appeal filed by the petitioner, either deciding or dismissing his appeal. The petitioner had addressed a detailed communication to the respondent no.3 on 15th January 2018 which has been placed on record in form of Exhibit-J. The petitioner requested the respondent no.4 to keep the proceedings initiated by the detention order in abeyance till any communication is received from respondent no.4. However, no communication was received by the petitioner and on 7th May 2018, he received a communication from respondent no.5 directing the petitioner to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demand confirmed within two months and it was only on deposit of such amount, the Appeal would be heard on merits. Shri Shah would submit that in absence of the petitioner having any knowledge of such an order, the amount was not deposited since the petitioner was under a bonafide impression that the Appeal was pending before the Commissioner of Customs (Appeals). Shri Shah would submit that in any contingency, now he has complied with the said stipulation of deposit of 50% of the amount which has been confirmed by the Order-in-Original and an amount of ₹ 14,70,651/deposited by him is sufficient compliance of section 129A of the Customs Act 1962. He would submit that in this backdrop, the impugned order of detention directing the recovery of the amount is premature and bad in law, and his Appeal needs to be heard on its merits. 8. In response to the writ petition, the Dy. Commissioner of Customs has filed an affidavit on 9th July 2018. It is the specific case set out in the said affidavit that the Commissioner (Appeals) vide Order-in-Original No. 761/ MCH/AC/Gr.VB/2012 dated 12th September 2012 directed the petitioner to comply with the interim order dated 22nd M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -compliance of the earlier Miscellaneous order dated 16th May 2012 and accordingly, the relevant entry in Appeal Register maintained in the section was taken. The learned counsel Shri Jetly relied on the said affidavit and would submit that there is no Appeal pending before the respondent no.3 and the petitioner has rather misconstrued the status of their appeal by treating the same as still pending for final decision, despite the fact that the condition of deposit of 50% of confirmed demand was not fulfilled. Mr. Jetly would submit that the petitioner after depositing the amount of ₹ 14,71,651/on 12th June 2018 did not approach the Commissioner of Customs (Appeals) for condonation of delay in compliance of the order and for restoration of the Appeal. He would submit that when the statute itself makes it imperative that whenever an appeal is to be filed and the decision or order appealed against, relates to any duty or interest demanded in respect of goods, the person desirous of appealing against such decision or order shall deposit the duty and the interest demanded or the penalty levied. He would submit that the proviso appended to section 129E conferred a discretion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining any Appeal. Since in the present case, the Order-in-Original is dated 24th August 2009 and the petitioner has preferred an Appeal under Section 128 on 18th September 2009, he is governed by Section 129E as it stood prior to its amendment with effect from 6th August 2014. As per the said provision, whenever any Appeal is filed against a decision or order, in respect of the goods which are not within the control of the custom authorities and it relates to any duty and interest or imposition of any penalty levied under the Act, it is imperative on the person desirous of filing such an appeal to deposit the amount of duty and the interest demanded or the penalty levied. By virtue of a proviso inserted to the said section, the Commissioner (Appeals) in a particular case, if he is satisfied that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) may dispense with such deposit, subject to such conditions as he may deem fit to impose so as to safeguard the interest of the Revenue. The application of such a nature which is filed before the Commissioner for dispensing with the deposit of duty and interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. In this case it is manifest that the order of the Tribunal was passed honestly, bona fide and having regard to the plea of 'undue hardship' as canvassed by the appellant. There was no error of jurisdiction or misdirection . It has been consistently held by the Hon'ble Apex Court as well as this Court that a reasonable condition imposed, by way of a statutory power exercising the right of Appeal, unless and until the said condition either defeats or renders the vested right of Appeal illusory, in no way affects the vested right of Appeal. The stipulation contained in Section 129E of deposit of duty amount ensured that the amount is secured and was included so as to protect the interest of the Revenue. 11. Mr.Shah does not dispute the said settled position of law and would submit that it was only on the factual background of the matters, since the order passed by the appellate authority on 12th September 2012 was not communicated to the petitioner, 50% amount as modified by Appellate Authority could not be deposited. 12. If the mandate of the statute requires to make pre-deposit of some amount as a condition precedent, entertainment of an appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the Appeal filed by him resulted into a dismissal on expiry of period of two weeks from 12th September 2012. It is for the first time in the affidavit which is tendered on behalf of the Revenue the petitioner is made known that by deeming fiction, the appeal filed by him stand dismissed on expiry of period of two weeks from 13th September 2012 in view of the contingency that the petitioner has failed to deposit 50% amount as directed by the Commissioner (Appeals). In any contingency, the petitioner has now deposited an amount of ₹ 14,70,651/on 12th June 2018 and the petitioner has also made a request to the Commissioner of Customs (Appeals) informing about the compliance of the order directing deposit of 50% of the demand duty. It is apparent that while addressing the said communication on 12th June 2012, the petitioner was not aware that the Appeal is dismissed and it is only in the reply it is disclosed that it is deemed to be dismissed. In such circumstances, the interest of justice would be served if the appeal filed by the petitioner is restored to its file and the Commissioner is directed to decide the same on its own merits. In light of the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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