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TMI Blog2022 (3) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority prior to the commencement of the Finance Act (2) of 2014 - Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. The substitution has effected a repeal and it has re-enacted the provision as it is contained in Section 129E. In fact, the acceptance of the argument would involve a dichotomy in law. On the one hand, what the appellant is called upon to pay is not the full amount as is contemplated in Section 129(E) before the substitution. The order passed by the Commissioner is dated 23.11.2015 which is after the substitution of Section 129E. The appellant filed the appeal in 2017. What the appellant is called upon to pay is the amount in terms of Section 129E aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion of the proceedings, the Commissioner of Customs (Preventive) West Bengal, Kolkata passed a common order, wherein the appellant came to be visited with penalty in a sum of ₹ 75 lakhs. It appears that the other person was also asked to pay penalty. They preferred appeals before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata in the year 2017. The Tribunal finding that the appellant has not made pre-deposit dismissed the appeal. It is this order which was put in issue before the High Court and the High Court has upheld the order. 3. We heard Mr. Galib Kabir, learned counsel for the appellant. Learned counsel for the appellant would point out that demand for pre-deposit is not warranted in law. His argument is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication 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. It is thereafter that the present version was inserted with effect from dated 06.08.2014, which reads as follow:- 129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason that the substitution of Section 129A was effected on 06.08.2014 which is after the date of the incident (28.02.2013). On the basis of the same, it is contended that under Section 129E, as it stood, prior to the substitution there was a power available with the Appellate Authority in the matter of demand of pre-deposit. He would point out that the amount for pre-deposit in his case is harsh and onerous. 6. On a conspectus of the provisions of Section 129E before and after the substitution, it becomes clear that the law giver has intended to bring about a sweeping change from the previous regime and usher in a new era, under which the amount to be deposited was scaled down and pegged at a certain percentage of the amount in dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discretion which was made available to the appellate body to scale down the pre-deposit has been taken away. 9. The first proviso of Section 129E of the present Section enacts a limitation on the total amount which can be demanded by way of pre-deposit. The first proviso provides that the amount required to be deposited should not exceed ₹ 10 Crores. In this regard, the law giver has purported to grant relief to an appellant. The second proviso contemplates that Section 129(e) as substituted would not apply to stay applications and appeals which are pending before the Appellate Authority prior to the commencement of the Finance Act (2) of 2014. The amended provision, as we have already noticed has come into force from 06.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 129E under the earlier avtar. 11. We would think that the legislative intention would clearly be to not to allow the appellant to avail the benefit of the discretionary power available under the proviso to the substituted provision under Section 129E. When the appellant is not being called upon to pay the full amount but is only asked to pay the amount which is fixed under the substituted provision, we do not find any merit in the contention of the appellant. However, in the interest of justice we extend the period for complying with Section 129E by a period of two months from today. Subject to the same, the appeal will stand dismissed. There will be no order as to costs. Pending application(s), if any, stands disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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