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2019 (10) TMI 822 - AT - CustomsMaintainability of appeal - non-compliance with the mandatory pre-deposit within time limit for filing an appeal - time limit under section 128 of the Customs Act, 1962 - HELD THAT - Hon ble High Court of Gujarat in the case of RAMESH VASANTBHAI BHOJANI VERSUS UNION OF INDIA 2 2017 (5) TMI 444 - GUJARAT HIGH COURT has drawn a distinction between Section 128 and 129E and held that the date of filing of appeal under Section 128 is different from the date of making the mandatory pre-deposit without which the appeal cannot be entertained as per Section 129E. The appeal has been filed within the condonable time limit on 10.07.2017 - matter remanded to the First Appellate Authority to decide the appeal on merits - appeal allowed by way of remand.
Issues:
1. Appeal rejection based on failure to make mandatory pre-deposit within the time limit for filing. Analysis: The appeal in question was filed against an Order-in-Appeal, which was rejected by the First Appellate Authority due to the appellant's failure to make a mandatory pre-deposit within the specified time limit. The appellant contended that although the appeal was filed within the condonable time limit under Section 128(1) of the Customs Act, 1962, the mandatory pre-deposit was not made until a later date. The First Appellate Authority considered the date of making the pre-deposit as the date of filing the appeal, leading to the rejection of the appeal. The appellant argued that filing an appeal and making a pre-deposit are distinct actions, citing a judgment by the Hon'ble High Court of Gujarat which emphasized the difference between the two processes. The High Court held that while the appeal must be filed within the time limit, the requirement of a pre-deposit under Section 129E does not specify a time limit. Therefore, an appeal under Section 128 can be considered even if the mandatory pre-deposit is made after the deadline for filing the appeal. The appellant further contended that the failure to make a pre-deposit, as required under Section 129E, constitutes a deficiency in filing the appeal but does not invalidate the filing itself. The appellant rectified this deficiency by making the deposit after filing the appeal, which should not be equated with the date of filing the appeal under Section 129E. On the other hand, the Departmental Representative supported the First Appellate Authority's decision, emphasizing that a valid appeal must fulfill all essential conditions at the time of filing. The Department argued that the appellant had sufficient time to rectify the deficiency within the condonable time limit but failed to do so, making the pre-deposit only after the deadline had passed. After considering the arguments from both sides and reviewing the case records, the Member (Technical) of the Appellate Tribunal referred to the judgment of the Hon'ble High Court of Gujarat, which distinguished between the filing of an appeal under Section 128 and the mandatory pre-deposit under Section 129E. Following the High Court's reasoning, the Member held that the appeal had indeed been filed within the condonable time limit, even though the pre-deposit was made after the deadline. Consequently, the appeal was allowed, and the matter was remitted to the First Appellate Authority for a decision on the merits. The Member's decision was based on the interpretation that the date of filing an appeal should be considered separate from the date of making the mandatory pre-deposit, as per the legal provisions and relevant judgments cited during the proceedings.
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