2022 (9) TMI 689 - AT - Customs

Maintainability of appeal - appeal of the appellant rejected for non-compliance with the requirement of pre-deposit as per Section 129E of the Customs Act, 1962 - HELD THAT - Since the appellant has made the pre-deposit as required for hearing the appeal, I am of the view that the pre-deposit made before the Tribunal can be treated as pre-deposit made before the Commissioner (Appeals). Since the Commissioner (Appeals) has not passed any order in the matter remanded back to him, on merits, ends of justice will be met if this matter is again remanded back to the Commissioner (Appeals) for deciding the issue involved, on merits, as per the earlier remand order of the Tribunal - it is made clear that the appellant would be barred from claiming the refund of the amount pre-deposited for filing of this appeal in Tribunal till the disposal of the appeal by the Commissioner (Appeals) in the remand proceedings. Appeal is allowed and the matter remanded back to the Commissioner (Appeals) for deciding the issue on merits.

Issues:
1. Non-compliance with pre-deposit requirement under Section 129E of the Customs Act, 1962.
2. Delay in accepting the appeal due to pre-deposit made after the stipulated time.
3. Remand of the matter back to the Commissioner (Appeals) for deciding the issue on merits.

Analysis:

1. The appellant filed an appeal against an order-in-appeal passed by the Commissioner of Customs (Appeals), Mumbai-III, which was rejected for non-compliance with the pre-deposit requirement as per Section 129E of the Customs Act, 1962. The appellant failed to deposit 7.5% of the amount demanded, which is mandatory for entertaining the appeal. Despite reminders and a defective appeal notice, the appellant did not fulfill the pre-deposit condition. The Commissioner (Appeals) observed that the appeal was not maintainable due to non-payment of the prescribed pre-deposit, leading to the rejection of the appeal without delving into its merits.

2. A miscellaneous application was filed by the appellant stating that the pre-deposit was made after the stipulated time, requesting the condonation of any delay in accepting the appeal. The Bench, considering the procedural irregularity as rectified by the subsequent pre-deposit, restored the appeal back to the file and condoned the delay in making the payment. The appeal was admitted for hearing after the pre-deposit was made, and the miscellaneous application for waiver of pre-deposit was rejected as infructuous.

3. The Tribunal remanded the matter back to the Commissioner (Appeals) for deciding the issue on merits, as the Commissioner had not passed any order on the remanded matter. The appellant was barred from claiming a refund of the pre-deposited amount until the appeal was disposed of by the Commissioner (Appeals) in the remand proceedings. The Tribunal directed the Commissioner (Appeals) to decide the issue within three months of the order, emphasizing the timely resolution of the matter due to its age.

In conclusion, the appeal was allowed, and the matter was remanded back to the Commissioner (Appeals) for deciding the issue on merits within a specified timeframe, ensuring compliance with the pre-deposit requirement and procedural rectifications.

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