2011 (3) TMI 1222 - AT - Customs

Waiver of pre-deposit - Condonation of delay - Held that - Nothing else was averred or requested by the assessee in the stay application before the Commissioner (Appeals). Nevertheless the Commissioner (Appeals) examined the various aspects of the matter including undue hardships though there was no plea of hardships in the stay application. The appellate authority referred to relevant decisions of the Hon ble Supreme Court and this Tribunal on the factors to be considered under Section 129E of the Customs Act and Section 35F of the Central Excise Act for waiver of pre-deposit. After careful examination of all the relevant aspects the Commissioner (Appeals) directed the above pre-deposit to be made by the assessee. Accordingly an amount of Rs.40 lakhs was required to be deposited before 17.4.2009 & also made clear therein that in the absence of evidence of pre-deposit the appeal would be dismissed ex-parte. Thus enough material found in support of the prima facie view taken by the Commissioner (Appeals) - allow these appeals by way of remand with a direction to the appellant to pre-deposit Rs.40 lakhs within four weeks from today.

Summary

Issues involved:
1. Maintainability of appeals under Sections 128A, 129A, and 129E of the Customs Act, 1962.
2. Condonation of delay in filing Appeal No. C/942/09.
3. Consideration of waiver of pre-deposit and stay of recovery in the appeals against the order of the appellate Commissioner.

Issue 1: Maintainability of appeals under Sections 128A, 129A, and 129E of the Customs Act, 1962:
The appeals were challenged based on the non-maintainability under Sections 128A, 129A, and 129E of the Customs Act. The Jt. CDR argued that the appeals were not maintainable, citing relevant judgments. However, the absence of the appellants' counsel led to the mention of judgments by an amicus curie, indicating that such appeals are maintainable based on Supreme Court decisions. The Supreme Court's judgments, including those in the cases of Smithkline Beecham Co. Health Co. Ltd. and Alnoori Tobacco Products, were presented, leading to the overruling of the preliminary objection raised by the Jt. CDR.

Issue 2: Condonation of delay in filing Appeal No. C/942/09:
Appeal No. C/942/09 was delayed by 41 days, with the appellants explaining that they initially filed a single appeal against the order of the Commissioner (Appeals) and later filed a supplementary appeal. The delay was deemed condonable as per the explanation provided by the appellants and the lack of opposition to the plea for condonation. Consequently, the application for condonation of delay was allowed.

Issue 3: Consideration of waiver of pre-deposit and stay of recovery in the appeals against the order of the appellate Commissioner:
The appellants sought waiver of pre-deposit and stay of recovery in their appeals against the order of the appellate Commissioner. The Jt. CDR opposed these applications, highlighting the lack of reasons provided by the appellants for waiver and stay under Section 129E. After considering the submissions, it was decided that the appeals needed to be finally disposed of at that stage. Therefore, pre-deposit was dispensed with, and the appeals were taken up for final disposal.

In summary, the judgment addressed the maintainability of appeals under the Customs Act, the condonation of delay in filing one of the appeals, and the consideration of waiver of pre-deposit and stay of recovery in the appeals against the appellate Commissioner's order. The Supreme Court's decisions played a crucial role in determining the maintainability of the appeals, leading to the overruling of the preliminary objection. The delay in filing one of the appeals was condoned based on satisfactory explanations provided. Finally, the appeals were taken up for final disposal after dispensing with the pre-deposit requirement.