2015 (9) TMI 1074 - HC - Customs

Waiver of pre-deposit - tribunal dismissed the appeal for non compliance with an order imposing a pre-deposit condition. - appellant actually sought was a waiver of penalty, due to the fact that the duty itself was not assessed and also due to the admitted fact that the vehicle was seized from the custody of a third party. - Held that - The fact remains that the appellant is entitled to the benefit of Section 129E in view of the admitted position that the vehicle was seized from the custody of a third party. - Tribunal rejected the said contention on the short ground that the appellant did not raise this point at the time when the conditional order was passed Once these things are actually borne out by records, it was not correct on the part of the Tribunal to take a stand that at the time of passing the conditional order, the plea regarding bank guarantee was not raised. Even if the plea regarding the bank guarantee was not raised, this was not a case where a pre-deposit condition, even if it is leviable, cannot be twice the amount of penalty, which was the only item that was assessed even in the order on appeal. Therefore, we are of the considered view that the appellant is entitled to succeed. - Matter restored before the tribunal - Decided in favour of assessee.

Summary

Issues:
Challenge of order refusing to entertain statutory appeal due to non-compliance with pre-deposit condition.

Analysis:
The appellant imported a Nissan GTR car for personal use, declared as brand new, and paid duty under a specific notification. However, a show cause notice was issued later due to undervaluation. The Order in Original rejected the declared value, re-determined the value, confirmed differential duty, interest, and ordered confiscation and penalties on individuals involved.

The Commissioner of Customs modified the Original Authority's order, holding the vehicle as new and determining its value. The appellant was given the option to pay a reduced penalty within a specified time frame. Subsequently, the appellant filed a further appeal seeking waiver of a pre-deposit condition, specifically for the penalty amount, as the duty itself was not assessed, and the vehicle was seized from a third party.

The Tribunal directed the appellant to deposit a specific amount within a timeframe, which was not complied with, leading to the dismissal of the appeal. The appellant contended that the penalty amount was already secured through a bank guarantee and raised the issue of entitlement to Section 129E benefits. The Tribunal rejected this contention, stating it was not raised earlier.

Upon review, it was found that only the penalty amount was quantified for payment, while other aspects like duty and interest were not determined. The appellant's application was more for a waiver of penalty than a pre-deposit condition. The Tribunal's decision was overturned, stating that the appellant was entitled to the benefits under Section 129E, and the appeal should be heard and decided accordingly.

In conclusion, the civil miscellaneous appeal was allowed, the Tribunal's order was set aside, and the appeal was to be heard and disposed of as per the law. The appellant was required to maintain the bank guarantee until the appeal's disposal, with no costs imposed.