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TMI Blog2018 (9) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the second respondent shall not entertain any appeal under sub-section (1) of Section 128, unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an Officer of Customs, lower than the rank of Commissioner of Customs. Since the Division Bench has also taken into consideration of the Full Bench decision relied on by the respondents and has come to the above conclusion that the Appellate Authority could not have dismissed the appeal on the ground that the prescribed mandatory appeal was made beyond the condonable period, this Court, bound by the above decision of the Division Bench, cannot take a different view. The matter is remitted back to the second respondent to take up the appeal and pass orders on the same on merits - appeal allowed by remand. - W.P.No.15423 of 2018 - - - Dated:- 7-9-2018 - Mr. K. Ravichandrabaabu J. For the Petitioner : Mr.Akhil Suresh For the Respondents : Mrs.Aparna Nandakumar, Senior Panel Counsel ORDER The petitioner is aggrieved against the order of the second respondent dated 17.01.2018 in dismissing the appeal on the reason that the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition as to whether the appeal presented within time can be rejected on the ground that pre-deposit was made belatedly, has already been considered by the Division Bench of this Court in W.A.Nos.342 to 347 of 2017 dated 07.06.2017, wherein the Division Bench after taking note of various decisions, including the Full Bench decision relied on by the respondents herein viz., [1996 (I) CTC 95], has observed at Paragraph No.24.4 to 32 as follows: 24.4.Therefore, a plain reading of the expression, 'presenting' which obtains, in proviso to Section 128 (1), as against 'entertain' which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act. 25.Mr.Chopda, during the course of his arguments, has articulated a concern on behalf of the Revenue, which is, if such an interpretation is given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But the very next sentence in the said judgment cuts at the very root of the respondent's contention. It is as follows: ............But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. 29.In our view, the said observations of the Full Bench have to be read in the context of the provision, which the Court was called upon to interpret in the said case. 29.1.In that case the Court was called upon to interpret the provisions of Section 31 (1) of the Tamil Nadu General Sales Tax Act, 1959 (in short, the TNGST Act). For the sake of convenience, the same, as set out in the judgment, is extracted herein below: 6.Sub-section (1) of section 31 of the Act is as follows: 31.Appeal to the Appellate Assistant Commissioner.- (1) Any person objecting to an order passed by the appropriate authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Vs. Appellate Deputy Commissioner and Another, (2013) 10 Supreme Court Cases 655 . For the sake of convenience, the observations made by the Supreme Court in paragraph nos.2 to 4 and 6 being apposite, are set out hereafter: 2.The factual narration would exposit that the appellant herein preferred an appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of ₹ 8,52,472 was required to be deposited as per the calculation made under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 (for brevity the Act ) but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge disposed of the writ petition directing the assessee to comply with all the requirements as intimated by the appellate authority in the return memo dated 3-1-2011 and on such compliance, the appellate authority was directed to register the appeal and dispose of the same in accordance with the law. 3.In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that Section 51 uses the term entertain and second, the amount that was due to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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