2017 (11) TMI 729 - HC - Customs

Penalty - second proviso to Section 129A of the Customs Act, 1962 - Whether the CESTAT erred in rejecting the appeal of the Appellant under clause (iii) to the second proviso of Section 129A of the Customs Act, 1962? - Held that - In the present case, the appeal before the CESTAT was appealable under Section 129 (1) (a) of the Act and not under Section 129A (1) (b), (c) or (d) of the Act. Therefore, the second proviso to Section 129A of the Act did not apply as far as the appeal of the Appellant herein was concerned. This is clearly an error apparent on the face of the impugned order of the CESTAT. The Court sets aside the impugned order of the CESTAT and restores the appeal of the Appellant to the file of the CESTAT for a fresh consideration on merits - appeal allowed - decided in favor of appellant-assessee.

Summary

Issues Involved:
Appeal against CESTAT order invoking proviso to Section 129A of Customs Act, 1962.

Analysis:
The appeal was filed against the order passed by the Commissioner of Customs, which was dismissed by CESTAT invoking clause (iii) to the second proviso to Section 129A of the Customs Act, 1962. The main question of law framed for consideration was whether CESTAT erred in rejecting the appeal under the said provision. The Court, after hearing the counsels, concluded that the question must be answered in the affirmative.

The Court identified errors in the impugned order. Firstly, the order described as an 'order in appeal' by the Commissioner of Central Excise was actually an 'order in original' passed by the Commissioner of Customs. Secondly, CESTAT overlooked that clause (iii) of the second proviso to Section 129A applies only to specific orders under Section 129A (1)(b), (c), or (d), whereas the appeal in this case was under Section 129(1)(a). Hence, the proviso did not apply to the Appellant's appeal, constituting a clear error in the CESTAT's order.

Consequently, the Court set aside the impugned order of CESTAT and remanded the appeal of the Appellant for fresh consideration on merits. The question framed was answered in favor of the Appellant Assessee and against the Respondent Department. The Appellant's appeal was scheduled for fresh disposal on 25th October 2017, with a request for CESTAT to dispose of it within three months after receiving a certified copy of the Court's order. The appeal was thus disposed of in the mentioned terms.