2020 (1) TMI 1454 - AT - Customs

Maintainability of appeal - appeal dismissed on the ground of failure to comply with the pre-deposit - Section 129A (1) of the Customs Act, 1962 - HELD THAT - Section 129E of the Customs Act, 1962, as stood at the relevant time, provided inter alia that the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or penalty levied. However, the deposit could be waived subject to such conditions as may be imposed - The order dated 21 August 2010 passed by the Commissioner (Appeals) imposed a condition. The appellant was required to deposit ₹ 1 lakh on or before 3 June 2010. The appellant, however, did not deposit the amount nor the appellant appeared before the Commissioner (Appeals). In such circumstances, the Commissioner (Appeals) dismissed the appeal. Even in the present appeal, though the appellant had said that an application for waiver of pre-deposit would be filed separately, it is seen that such an application has not been filed - Appeal dismissed.

Issues:
1. Compliance with pre-deposit order by the appellant before the Commissioner of Customs (Appeals).
2. Failure of the appellant to ensure compliance with the order dated 21 May 2010.
3. Consideration of waiver application for duty and penalty.
4. Rejection of the application for stay of the order dated 4 June 2010.
5. Lack of appearance by the appellant for various hearings.
6. Interpretation of Section 129E of the Customs Act, 1962 regarding deposit requirements pending appeal.
7. Dismissal of the appeal by the Commissioner (Appeals) due to non-compliance with the deposit condition.
8. Confirmation of the dismissal order by the Appellate Tribunal CESTAT KOLKATA.

Detailed Analysis:
1. The appeal was filed to challenge the order passed by the Commissioner of Customs (Appeals) on 4 June 2010, where the appellant failed to comply with the pre-deposit requirement of ?1,00,000 by 3 June 2010 as directed in the order dated 21 May 2010. The appellant's failure to deposit the amount and appear for the hearing led to the dismissal of the appeal by the Commissioner (Appeals).

2. Despite the appellant's claim in the appeal form that a separate application for waiver of duty and penalty was made, no such application was found in the appeal records. An application for stay of the order dated 4 June 2010 was submitted on 4 October 2010 but was rejected on 9 October 2018 due to lack of representation, indicating a lack of seriousness in pursuing the stay application.

3. The appeal proceedings showed a pattern of non-appearance by the appellant for scheduled hearings, including the date when the appeal was listed for hearing on 9 October 2018. This consistent absence further demonstrated the lack of commitment on the part of the appellant in pursuing the appeal.

4. Section 129E of the Customs Act, 1962, required the appellant to deposit the duty, interest, or penalty demanded pending the appeal, with the possibility of waiver under specified conditions. The order dated 21 August 2010 mandated the appellant to deposit ?1,00,000 by 3 June 2010, a condition that was not met by the appellant, leading to the dismissal of the appeal by the Commissioner (Appeals).

5. The Appellate Tribunal CESTAT KOLKATA upheld the decision of the Commissioner (Appeals) regarding the dismissal of the appeal due to the appellant's failure to comply with the deposit condition and the absence of a waiver application. The Tribunal found no error in the Commissioner's order and consequently dismissed the appeal, emphasizing the importance of adhering to procedural requirements in customs appeals.

6. In conclusion, the appeal was dismissed by the Appellate Tribunal CESTAT KOLKATA based on the appellant's non-compliance with the deposit condition and the absence of a waiver application, affirming the decision of the Commissioner of Customs (Appeals) in dismissing the appeal under Section 129E of the Customs Act, 1962.

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