9911796707
TMI Blog2019 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench to the following dates: Impugned Order No. Date on which impugned Order received by the Appellant (as indicated at S.No.4 of Form CA-1) Due date for filing of appeals u/s 128(1) of Customs Act, 1962 (within normal period of 60 days) Due date for filing of appeals under Proviso to Section 128(1) of Customs Act, 1962 (within extended period of 30 days) Date on which appeal was filed with mandatory pre-deposit for admitting the appeal 64/2017 dated 07.04.2017 20.04.2017 19.06.2017 19.07.2017 03.08.2017 He would submit that the appeal was filed by them on 10.07.2017 well within the condonable time limit under Section 128(1) of the Customs Act, 1962. However, they had not paid the mandatory pre-deposit and hence office of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last date for filing of an appeal. He draws the attention of the Bench to paras 12 & 14 of the judgment of the Hon'ble High Court which are reproduced below: 12. On a plain reading of Section 129E of the Act, it is clear that what the same envisages is that an appeal shall not be entertained unless the appellant has deposited such percentage of duty as specified in clause (i) to clause (iii) thereof, respectively. The section, however, does not say that the appeal shall be accompanied by a challan evidencing payment of pre-deposit or that the appeal cannot be filed unless such payment has been made. Reference may also be made to the provisions of the Customs (Appeals) Rules, 1982, which prescribe the form and manner in which an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an appeal, even when there is a delay, has to be filed within a period of ninety days from the date of receipt of the order-in-original, it may be that a party may not be in a position to arrange for the amount of pre-deposit within such period. However, that by itself, should not be a ground to totally non-suit such party, more so, when what the statute provides is that the appeal shall not be entertained unless such pre-deposit is made. As held by the Supreme Court in the above referred decision, a condition to entertain an appeal does not mean that the memorandum of appeal shall be returned because of such non-compliance pertaining to pre-deposit and that the only consequence is that the appeal shall not be entertained, which means the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. The date on which the defect has been removed cannot be treated as filing of an appeal under Section 129E. Therefore, the First Appellate Authority has wrongly rejected their appeal and their appeal may be allowed and the matter may be remitted to the First Appellate Authority to decide the issue on merits. 4. Learned DR, on the other hand, reiterates the findings of the First Appellate Authority. He submits that filing of an appeal would require the appeal to be correct and complete in all respects. Merely because a document is filed without meeting of the essential conditions, the appeal cannot be treated as a valid appeal. In this case, making the pre-deposit is an essential pre requisite for filing an appeal without which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
