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TMI Blog2015 (12) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... peals. - when the petitioner merely re-presented the appeal which was already filed for the purpose of challenging the consolidated order of the Commissioner under both the laws, such filing of appeal must be seen as a continuation of the original proceedings and fresh presentation of the appeal would relate back to the original date of filing the appeal. The issue can be seen from another angle. If by the time the petitioner presented the fresh appeal within the time permitted and directed by the Tribunal, the period of limitation had expired, would such appeal be rejected as time-barred. It becomes clear that the amended section 129-E of the Customs Act with effect from 06.08.2014 would not apply to both the appeals of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal dated 15.07.2014. In such appeal, he challenged the entire order without any distinction regarding directions for payment of duties and penalties under the Central Excise Act or the Customs Act. Upon perusal of appeal memo, it clearly emerges that the petitioner had filed one single consolidated appeal against the order of the adjudicating authority. His prayer was to quash and set aside the entire order. The grounds raised in the appeal were also directed against both kinds of duties and penalties. 3. The Tribunal, however, issued a memo on 24.07.2014 and raised a defect in such appeal which was specified as under: One more Custom appeal to be filed against the OIO No.AHMEXCUS- 003-COM-069-13-14 dated 31.03.2014 in quadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. This section was amended with effect from 06.08.2014 and now reads as under: 129-E Deposit of certain percentage of duty demanded or penalty imposed before filing appeal - (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty, as the case may be, leaving no discretion to the appellate authority to waive such requirement in order to entertain an appeal. 7. The view of the Tribunal is that, since the appeal filed by the petitioner under the Customs Act was filed after 01.11.2014, i.e. after the amendment of section 129-E, the amended provision would apply. The Tribunal, therefore, insisted that the petitioner should make pre-deposit of 7.5% of the duty and penalties. When the petitioner failed to do so, the appeal was dismissed on this short ground only. 8. Counsel for the petitioner submitted that the appeal challenging the Customs duty and penalty, though was re-presented on 11.08.2014, it was nothing but a continuation of earlier appeal already f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulted into one order of adjudication passed by the Commissioner, we wonder whether the petitioner was even obliged to file a separate appeal. Insofar as the petitioner is concerned, it received one show cause notice and was visited with one final order of adjudication. Its liability, therefore, was to file a single appeal challenging such order of the Commissioner. It may be for convenience and better appreciation of issues that the Tribunal insisted for separate two appeals. Nevertheless, we have serious doubts whether under the law the petitioner was required in the first place to present two separate appeals. Be that as it may, when the petitioner merely re-presented the appeal which was already filed for the purpose of challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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