2014 (5) TMI 485 - HC - Customs

Waiver of pre-deposit - whether the prayer of the appellant to examine, whether he was liable to pay the amount demanded (duty and interest or the penalty levied) even before depositing of the amount as per the order dated 27.12.2012 passed under Section 129-E of the Act - Held that - having considered the intendment of the legislature in introducing the provisions contained in section 129E of the Act, it is not open to the appellant to seek dispensation on merits of the case and it is mandatory for such appellant to deposit the amount, as contemplated under Section 129E of the Act, without prejudiced to his rights and contentions raised in the memorandum of appeal, to be argued at the stage of final hearing of the appeal - No reason to interfere with Tribunal s order - Decided against assessee.

Summary

Issues:
Challenge to the order directing deposit of customs duty and central excise duty before appeal examination.

Analysis:
The appeals were filed against the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, rejecting an application for stay of an order demanding customs duty, penalty, and interest. The appellant sought dispensation of pre-deposit under Section 129E of the Customs Act, 1962. The CESTAT directed the appellant to deposit a specific sum towards customs duty and central excise duty within a specified period. Subsequently, the appellant filed an application seeking the recall of this order, arguing that the CESTAT did not examine whether the appellant was liable to pay the demanded amount before depositing it. The main contention was that the appellant was not liable to pay any duty and interest as per the original order passed by the Commissioner of Customs. The appellant also claimed entitlement to depreciation as per a Board Circular issued by the Ministry of Finance.

Upon reviewing the impugned order, subsequent orders, and Section 129E of the Act, the court noted that the provision allows the Tribunal to dispense with the deposit if it would cause undue hardship to the appellant. However, in this case, the appellant sought dispensation based on the merits of the case, arguing that the demand itself was wrong and illegal. The court emphasized that seeking dispensation on the grounds of merit before depositing the amount would defeat the purpose of Section 129E. The court held that the appellant must deposit the amount as required by the Act, without prejudice to their rights and contentions raised in the appeal to be argued at the final hearing stage.

Ultimately, the court concluded that considering the legislative intent behind Section 129E, the appellant cannot seek dispensation based on the merits of the case. It was deemed mandatory for the appellant to deposit the amount as per the Act, allowing their arguments to be presented during the final appeal hearing. Consequently, the court found no reason to interfere with the Tribunal's order and dismissed the appeals.