2020 (1) TMI 112 - AT - Customs

Maintainability of appeal - appeal was dismissed for non-compliance with the requirement of mandatory pre-deposit of 7.5% of the amount of refund - section 129 E of the Customs Act 1962 - HELD THAT - It is observed that the factum of the appellant s account to have been seized by the DRI officers was brought to the notice of Commissioner (A). A request of the appellant has also been acknowledged by the Commissioner to have been made before him praying for release of the seized account. The order under challenge is silent about the said request. However, has simply dismissed the appeal for want of mandatory pre deposit on 7.5 % of the amount involved. The said silence on part of the Commissioner (A) is held unreasonable. Keeping in view that the said amount stands paid as of now, i.e. even prior to filing of the impugned appeal. Also keeping in view that procedural lapse may not be the cause for denying the substantial relief especially when the lapse is reasonably explained, it is deemed appropriate that an opportunity of being heard on merits be given to appellant. The order of Commissioner (A) is recalled remanding the matter back to him directing for taking a decision of the merits of the case - appeal allowed by way of remand.

Issues:
1. Non-compliance with mandatory pre-deposit for appeal.
2. Allegation of forged and fictitious Chartered Accountant certificate.
3. Seizure of appellant's account by DRI Indore.
4. Dismissal of appeal by Commissioner (A) for non-compliance with section 129 E of the Customs Act 1962.
5. Payment of pre-deposit post-appeal dismissal.
6. Lack of consideration of appellant's request for release of seized account.
7. Reasonableness of dismissing appeal solely for non-compliance with pre-deposit.

Analysis:
1. The appeal was filed challenging the rejection of the appellant's claim due to non-compliance with the mandatory pre-deposit requirement of 7.5% of the refund amount. The original order directed recovery from the appellant based on an allegedly forged Chartered Accountant certificate.

2. The appellant had initially filed a refund under a specific notification, which was later found to have been supported by a forged certificate. A show cause notice was issued for recovery, leading to the rejection of the appeal for non-compliance with the pre-deposit requirement.

3. During the proceedings, it was revealed that the appellant's account had been seized by DRI Indore. The appellant requested the release of the pre-deposit amount from the seized account, which was not granted by the Commissioner (A), resulting in the dismissal of the appeal.

4. The dismissal of the appeal by the Commissioner (A) was primarily based on the failure to comply with section 129 E of the Customs Act 1962, which mandates pre-deposit before filing an appeal. The subsequent payment made by the appellant was considered post the appeal dismissal.

5. The Tribunal observed that the Commissioner (A) did not address the merits of the case but dismissed the appeal solely on the grounds of non-compliance with the pre-deposit requirement. The Tribunal found this approach unreasonable, especially considering the circumstances of the seized account and the subsequent payment.

6. Given the payment made by the appellant and the procedural lapses in the case, the Tribunal allowed the appeal by remanding the matter back to the Commissioner (A) for a decision on the merits. The payment made by the appellant post-appeal dismissal was to be considered as compliant with Section 129 E of the Customs Act 1962.

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