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TMI Blog2024 (1) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants which has been appropriated towards total duty of Rs. 48,83,697/-. Since, the aforesaid amount already stands remitted to the department, therefore, same can be counted towards 7.5% of total duty involved of Rs. 48,83,697/- and appeal on merits could have been maintained and decided by the Commissioner (Appeals). Since, the present order passed by the Commissioner (Appeals) is not on merits but it has dismissed the appeal under Section 129E, the matter remitted back to Commissioner (Appeals) with direction that aforesaid amount of Rs. 7,81,861/- be considered towards 7.5% of mandatory pre-deposit and appeal entertained accordingly. Matters are accordingly remanded back. - HON BLE MR. RAJU, MEMBER (TECHNICAL) And HO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these appeals. In this regard, I hold that the delay is not fatal and falls within the period of 30 days after the initial 60 days, which this appellate authority is competent to condone. Besides, it is already a settled principle of jurisprudence to take lenient view in such cases. Hence, in terms of the proviso to Section 128(1), I condone the delay in filing the both appeals. However, before going into the merits of the appeals for decision, I find that in both the appeals, condition of payment of 7.5% of the pre-deposit under Section 129E of the Customs Act, 1962, has not been fulfilled. The appellants were asked to comply with the provisions of said section vide this office letter dated 09.08.2018. Advocate for both the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to appear for hearing on 02.01.2019, 16.01.2019 and 28.01.2019 or 31.01.2019. However, nobody turned up for personal hearing in respect of both the appeals till date. I find that sufficient chances were given in these cases for personal hearing. Also present appeals were filed in the month of July- 2018 hence the same cannot be kept pending for indefinite period. 4. Section 129E of the Customs Act, 1962 stipulates that the Tribunal or Commissioner (Appeals) as the case may be, shall not entertain any appeal of Section 128 (relevant section in this case), unless the appellant has deposited seven and half percent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 41,01,836/- was payable by them. It is therefore clear that during the course of investigation Rs. 7,81,861/- was actually paid by the appellants which has been appropriated towards total duty of Rs. 48,83,697/-. Since, the aforesaid amount already stands remitted to the department, therefore, same can be counted towards 7.5% of total duty involved of Rs. 48,83,697/- and appeal on merits could have been maintained and decided by the Commissioner (Appeals). Since, the present order passed by the Commissioner (Appeals) is not on merits but it has dismissed the appeal under Section 129E, we, therefore remit the matter back to Commissioner (Appeals) with direction that aforesaid amount of Rs. 7,81,861/- be considered towards 7.5% of manda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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