2014 (12) TMI 814 - AT - Customs

Waiver of pre-deposit - appellant submits that there is no quantification of any duty liability in the impugned order and, therefore, the appellant is not required to make any pre-deposit - Held that - As per the amended provisions, the appellant is required to deposit 10% of the duty, in case where duty or duty and penalty are in dispute or penalty where such penalty is in dispute, in pursuance of the decision or order appealed against. The meaning of the expression in pursuance is that which follows or in consequent upon a thing , a consequence . Therefore, if as a consequence of the order, duty liability arises, pre-deposit of 10% of the duty liability has to be made before an appeal against the order can be considered. In pursuance of the order of the appellate authority dated 03/06/2014, the value has to be re-determined taking into account the difference in the commercial levels between imports made by the appellant and identical imports made by others. On account of such re-determination, there may be liability to pay additional duty which has not been quantified and discharged. It is not the case of the appellant that in pursuance of the above order there would not be any differential duty liability. From a plain reading of the amended Section 129E of the Customs Act, 1962 to consider an appeal at the second appellate stage against an order of the lower appellate authority, 10% of the duty or penalty arising in pursuance thereof has to be pre-deposited. In other words, the law envisages that the pre-deposit has to be made. This mandate of law cannot be wished away. Therefore, the applicant is directed to approach the adjudicating authority for re-quantification of the duty liability in terms of the lower appellate authority s order and if they are still aggrieved, to come before this Tribunal, after making pre-deposit of the difference of duty so determined. - Decided in favour of assessee.

Summary

Issues:
1. Maintainability of the appeal without pre-deposit of duty liability quantification.

Analysis:
The case involved the appellant, an importer of alcoholic beverages, challenging the value of goods imported from foreign suppliers before the Customs authorities. The assessing officer had directed the enhancement of the goods' value based on the contemporaneous value of identical goods imported by independent buyers. The lower appellate authority ordered a re-determination of value considering differences in commercial levels and quantities. The appellant contended that since duty liability was not quantified, no pre-deposit was required, citing a Bombay High Court decision. The Revenue argued that the appeal was premature as duty quantification was pending. The Tribunal considered the amended provisions of section 129E of the Customs Act, requiring a 10% pre-deposit of disputed duty or penalty before filing an appeal. The Tribunal clarified that if an order leads to duty liability, pre-deposit is necessary. The Tribunal directed the appellant to approach the adjudicating authority for re-quantification of duty liability and make the pre-deposit before appealing further, emphasizing the mandatory nature of the pre-deposit requirement under the amended law.

The Tribunal emphasized that the appellant must make the required pre-deposit of 10% of the duty liability arising from the lower appellate authority's order before proceeding with the appeal. The Tribunal highlighted the significance of the amended Section 129E of the Customs Act, which mandates pre-deposit when duty liability emerges as a consequence of an order. The Tribunal distinguished the appellant's reliance on a prior Bombay High Court decision, stating its inapplicability post-amendment. The Tribunal's decision underscored the legal obligation to comply with the pre-deposit requirement for appealing against duty liabilities, as outlined in the amended law.

In conclusion, the Tribunal disposed of the appeal with directions for the appellant to re-quantify duty liability as per the lower appellate authority's order and make the necessary pre-deposit before approaching the Tribunal again. The appellant was granted three months from the date of duty quantification to re-appeal to the Tribunal, ensuring compliance with the pre-deposit requirement as per the amended provisions of the Customs Act.