TMI Blog2019 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... limit on 10.07.2017 - matter remanded to the First Appellate Authority to decide the appeal on merits - appeal allowed by way of remand. - C/30170/2018 - FINAL ORDER No. A/30652/2019 - Dated:- 4-10-2019 - Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Joseph Prabhakar, Advocate for the Appellant. Shri N. Bhanu Kiran, Assistant Commissioner for the Respondent. ORDER 1. This appeal is filed against the Order-in-Appeal No.VIZ-CUSTM-000-APP-027-17-18, dated 21.08.2017. 2. Learned Counsel for the appellant submits that their appeal has been rejected by the First Appellate authority on the ground that they had not made mandatory pre-deposit within time limit for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise, Jamshedpur [2008 (221) ELT 163-SC] held that the appeal is time barred beyond condonable limit and rejected the same. He would submit that the date of filing of an appeal under Section 128 is different from the date of making of pre-deposit under Section 129E of the Customs Act, 1962. He places reliance on the judgment of the Hon ble High Court of Gujarat in the case of Ramesh Vasantbhai Bhojani [2017 (357) ELT 63 (Guj)] in which the Hon ble High court has made a distinction between the word entertain used in Section 129E and filing of an appeal under Section 128 of the Customs Act, 1962. The Hon ble High Court has held that the appeal under Section 128 has to be filed within the time limit or, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the form of appeal in Form No. C.A.-1 shall be filed in duplicate and shall be accompanied by a copy of the decision or order appealed against. Clause (6) of Form No. C.A.-1 reads thus: Whether duty or penalty or both is deposited, if not, whether any application for dispensing with such deposit has been made. (A copy of the Challan under which deposit is made shall be furnished). It appears that in view of the above clause (6) in Form No. C.A.-1, the respondent authorities insist that the appeal memorandum be accompanied by a challan evidencing payment of pre-deposit. 14 . From the language employed in Section 129E of the Act, it is evident that the same mandates that the appeal shall not be entertained unless the pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence, there cannot be any insistence on payment of pre-deposit prior to filing the appeal. In these circumstances, if such a practice is in fact prevailing, namely, that the memorandum of appeal is being returned if the same is not accompanied with the challan evidencing payment of pre-deposit, such conduct on the part of the respondent authorities has no legal basis. The respondent authorities are duty bound to accept the memorandum of appeal if the same is filed in the prescribed form, without insisting upon the challan evidencing payment of pre-deposit accompanying the same. If the appeal comes up for hearing and the pre-deposit is not paid, the Commissioner (Appeals) may refuse to entertain the same and dismiss it on that ground. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to condone delay has already passed. In view of the above, there is no infirmity in the order of the First Appellate Authority. The same may be upheld and the appeal may be rejected. 5. I have considered the arguments of both sides and perused the records. The issue to be decided is whether in a case where the appeal has been filed within time or within the condonable time limit but no pre-deposit has been made and such pre-deposit has been made after the condonable time limit, the date of filing the appeal should be reckoned or the date of making the pre-deposit should be reckoned for the time limit under section 128 of the Customs Act, 1962. I find the Hon ble High Court of Gujarat in the case of Ramesh Vasanthbhai Bho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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