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TMI Blog2018 (9) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional release of the goods. The appellant challenged the said order of Commissioner before the Tribunal and deposited the amount of Rs. 7.5% of the duty in terms of section 129 E of Customs Act, 1962. 3. Ld. Counsel of the appellant argued that after they have deposited 7.5% in respect of the section 129 E of the Customs Act, 1962, therefore, no action for recovery can be taken by the Revenue. He relied on the circular no. 984/8/2014 dated 16/09/2014 wherein Para 4 following has been directed: "4. Recovery of the Amounts during the Pendency of Appeal : 4.1 Vide Circular No. 967/1/2013, dated 1st January, 2013, Board has issued detailed instructions with regard to recovery of the amounts due to the Government during the pendency of stay applications or appeals with the appellate authority. This Circular would not apply to cases where appeal is filed after the enactment of the amended Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. 4.2 No coercive measures for the recovery of balance amount i.e., the amount in excess of 7.5% or 10% deposited in terms of Section 35F of Central Excise Act, 1944 or Section 129E of Customs Act, 1962, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee for the rest of the amount cancelled. The Commissioner is directed to do so within a month from the date of the communication of this order. 5.2 It is seen that the bond has been executed to safeguard any fine that may be adjudged in lieu of confiscation of the provisionally released goods. The goods have already been disposed of by the appellant and there cannot be any provision to return the goods. In these circumstances relying on the decision of the Tribunal in the case of Dee Pearls (India) Pvt Ltd (supra), the application is rejected." 5.0 Ld. Counsel for the appellant pointed out that the said decision of Tribunal in the case of Hindustan Platinum Pvt. Ltd. has been set aside by Hon'ble High Court of Bombay as reposted in 2018-TIOL-173-HC-MUM-CUS and the matter has been remanded back to Tribunal. 6.0 We have gone through submissions. We find that section 129E of the Customs Act prescribes as under: "[SECTION 129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- (i) under sub-section (1) of section 128, unless the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35F of Central Excise Act, 1944 or Section 129E of Customs Act, 1962, shall be taken during the pendency of appeal where the party/assessee shows to the jurisdictional authorities : (i) proof of payment of stipulated amount as pre-deposit of 7.5%/10%, subject to a limit of Rs. 10 crores, as the case may be; and (ii) the copy of appeal memo filed with the appellate authority. 4.3 Recovery action, if any, can be initiated only after the disposal of the case by the Commissioner (Appeals)/Tribunal in favour of the Department. For example, if the Tribunal decides a case in favour of the Department, recovery action for the amount over and above the amount deposited under the provisions of Section 35F/129E may be initiated unless the order of the Tribunal is stayed by the High Court/Supreme Court. The recovery, in such cases, would include the interest, at the specified rate, from the date duty became payable, till the date of payment." A perusal of the circular shows that it has been issued with reference to section 35F of the Central Excise Act, 1944 and section 129E of the Customs Act, 1962. Both the sections prescribed the amount to be deposited with reference to the liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Para 5 of the said order the Hon'ble High Court observed: "Both sides concede that the order passed by the Division Bench of this court in the matter of My Dream Properties Pvt. Ltd. vs. Commissioner of Customs (Imports), Mumbai Customs Appeal No. 86 of 2017 = 2018-TIOL-74-HC-MUM-CUS concluded the issue in favour of the petitioner and against the Revenue. Therefore, we quash and set aside the order of the Tribunal and restore the miscellaneous applications to the Tribunal's file for being decided afresh and in accordance with law. The tribunal should not now dismiss it on the ground of maintainability. All contentions of both sides, as far as the merits of the application is concerned, are kept open." From the above it is apparent that the decision of tribunal has been set aside only to remand the matter back to Tribunal to be examined in the light of decision of Hon'ble High Court in the case of My Dream Properties (supra). The decision of Hon'ble High Court in the case of My Dream Properties, has already been analysed above. The question before the Hon'ble high Court in case of My Dream Properties (Supra) was as follows: "Whether the Customs, Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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