2015 (10) TMI 835 - AT - Central Excise

Waiver of pre deposit - Imposition of penalty - Held that - Order-in-original does not indicate that any amount is appropriated against the present appeal. This fact is not disputed by the learned counsel for the appellant. Whatever amount was deposited has already been appropriated in another case. The said amount cannot be taken for purpose of compliance with the requirement of Section 129E(iii) - Under the circumstances, the objection raised by the Registry is correct and the appellant is required to deposit 10% of the penalty imposed in the present appeal, which has not been done. In the interest of justice, the appellant is given time upto 3 rd September 2015 to deposit the said amount and report compliance on 4 th September 2015, pending which the appeal will be dismissed for non-compliance with the provisions of Section 129E(iii) of the4 Customs Act, 1962. - Decided conditionally in favour of assessee.

Summary

Issues:
Non-deposit of 10% penalty confirmed under Section 129E(iii) of the Customs Act, 1962.

Analysis:
The appellant, a common noticee in two show cause notices, had deposited an amount towards liabilities during investigation. However, the original authority appropriated the entire amount in one demand, leading to a dispute regarding the sufficiency of the deposit for compliance with Section 129E(iii). The appellant argued that the total liability in the show cause notices was higher than the deposited amount, which should be considered adequate. The Commissioner (Appeals) also supported this view in the case.

The Assistant Commissioner contended that the penalty imposed in the present appeal had not been specifically covered by the deposited amount, as it had been appropriated in another case. Therefore, the appellant failed to meet the requirements of Section 129E(iii) due to the lack of a specific deposit for the present show cause notice. The appellant's argument regarding the sufficiency of the deposit was refuted based on these facts.

The Tribunal analyzed Section 129E(iii) which mandates the deposit of 10% of the duty or penalty before filing an appeal. It was noted that the order-in-original did not show any appropriation against the present appeal, and the amount deposited had already been utilized in another case. As a result, the deposited amount could not be considered for compliance with the statutory requirement of Section 129E(iii).

Consequently, the Tribunal upheld the Registry's objection and directed the appellant to deposit 10% of the penalty imposed in the present appeal by a specified date. Failure to comply would result in the dismissal of the appeal for non-compliance with the provisions of Section 129E(iii) of the Customs Act, 1962. The appellant was granted a deadline to fulfill the deposit requirement, emphasizing the importance of adherence to the statutory provisions.