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TMI Blog2021 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no reason to entertain a writ petition and if at all there is any records available with the petitioners, they are at liberty to approach the CESTAT under Section 129A(1) of the Act. The CESTAT is empowered to call for the entire files, verify the records and form an opinion whether the petitioners are entitled for any such adjustment or not, or there is any error in respect of the findings made by the authority or not. However, such an elaborate adjudication cannot be done by the High Court in writ proceedings at this stage. The petitioners on one hand claim that they have paid ₹ 11.36 Lakhs towards duty. The Orders-in-Appeal, which are impugned, state that there is no clarity in respect of the said payment made by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited a sum of ₹ 11.36 Lakhs as customs duty and the said amount is to be adjusted towards the pre-deposit as contemplated under Section 129E of the Act. Instead of adjusting the customs duty already paid by the petitioners towards pre-deposit to be made for entertaining an appeal, the appeals itself were rejected on the ground that the petitioners have not complied with the condition regarding the pre-deposit of 10% duty demanded. 5.The order impugned reveals the following facts regarding noncompliance of the mandatory provisions of pre-deposit for entertaining an appeal, which are as hereunder:- 5.I have carefully gone through the facts of the case, impugned in Order-in-Original, grounds of appeals, common miscellaneous peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their claim that they made duty deposit of ₹ 11.36 lakhs relying upon the above para 21 of OIO lacks clarity. Moreover, LAA vide para 20 of the impugned OIO observed as follows:- 20. As per available records, importer had paid self assessed duty ₹ 4,53,644/- with interest ₹ 50,709/- vide system generated challan no.2014220200 i.e. 1st condition of the High Court order was fulfilled whereas, importer had not paid any amount ie., 50% of the department assessed duty of 22,72,020/- and also No Bank guarantee executed by them. Hence out of the Department re-assessed Duty ₹ 22,72,020/- importer already paid ₹ 4,53,644/- the balance ₹ 18,18,376/- was demanded as differential duty . It appears from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ten crores; Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. 6.Thus, it is clear that pre-deposit of duty or penalty as prescribed thereunder is mandatory and therefore the petition filed by the appellant and the appellant company to treat the deposit made before the SIIB as pre-deposit cannot be considered for the above discussions. Therefore, both the miscellaneous petition and the appeals are dismissed for noncompliance of Section 129E of the Customs Act, 1962. 6.The above findings would clearly show that the petitioners have paid self-assessed duty of ₹ 4,53,644 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said payment made by the petitioners. Under these circumstances, adjudication of facts is required with reference to the documents in original, which are to be scrutinised. Thus, the petitioners are at liberty to prefer an appeal under Section 129A(1) before the CESTAT for the purpose of redressal of their grievances. Contrarily, this Court need not entertain the writ petitions at this stage and keep the matter pending unnecessarily, as admittedly the petitioners have not exhausted the remedy available under the Act before the appellate tribunal, which is competent to deal with all the grounds raised by the petitioners in the present writ petitions. Thus, the petitioners are at liberty to prefer an appeal in the manner prescribed and by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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