Lakshmi Cement vs Cegat
1994 Latest Caselaw 714 Del

ORDER

K. Shivashankar Bhat, J.

1. The petitioner has sought review of an earlier order dated 1-2-1994 whereby this court directed the petitioner to deposit 50% of the demanded amount within 2 months and to furnish security of immovable property for the remaining 50% within 2 months from the date of the order so that the Tribunal may hear the petitioner's appeal on merits. The writ petition was disposed of accordingly with an observation that in case the petitioner does not comply with the said order the appeal of the petitioner would be dismissed.

2. Certain facts require to be noted to appreciate the present petition filed by the petitioner.

The petitioner imported certain material. The consignment arrived on 24-1-1991 at New Delhi. It was detained by the Customs Department attached to the Air Cargo Complex. Subsequently, show cause notice was issued. According to the Customs authorities the imported materials were trade advertisement materials/commercial catalogues and not technical collaboration documents as declared by the petitioner and therefore, according to the department 100% duty was leviable. Petitioner asserted that the consignment contained only the technical collaboration documents and hence no duty was chargeable. The stand of the petitioner was not accepted and an order was made, directing the payment of the duty at 100%. Petitioner filed an appeal before the CEGAT, New Delhi. Along with the appeal an application for stay was filed seeking the waiver of pre-deposit of the demanded duty. This application was rejected by the CEGAT and the petitioner was directed to deposit the amount within 6 weeks. The order was made on 12-5-1993. The petitioner challenged this order in this writ petition. In the petition the petitioner relied on Section 129E of the Customs Act and contended that since the goods were in the custody of the Customs Department pre-deposit was unnecessary while filing the appeal. According to the petitioner there was omission to bring to the notice of this court this provision when the court made the earlier order on 1-2-1994. According to the petitioner the CEGAT has dismissed the main appeal now, since the petitioner failed to deposit the amount as directed by this court.

Section 129E reads as follows :-

"129-E. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied :

Provided that where in any particular case the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue."

3. A plain reading of the above provision makes it clear that if the goods in question are in the custody of the Customs authorities the person filing the appeal against the order levying duty need not deposit the duty levied, the requirement of pre-deposit is only when the duty demanded in respect of the goods is not under the control of the Customs authority.

4. In the instant case, admittedly, the goods are in the custody of the Customs Authority. On this aspect there is no dispute and there cannot be any dispute. If so, the question of making any deposit of the duty levied while filing the appeal could not arise out of Section 129E.

5. We are of the view that this provision was not noticed while making the order on 1-2-1994 for whatever reason. The statutory right of the petitioner to approach the Appellate Authority is denied to the petitioner by a wrong reading of the provision. Accordingly, we recall our earlier order and at the same time set aside the order of the CEGAT dated 12-3-1993 imposing the condition of pre-deposit to entertain the appeal.

6. Since the appeal of the petitioner was dismissed by CEGAT for non-compliance of the order made by this court, which we have now recalled, the said Final Order No. 178/1994-C of CEGAT in Appeal No. C/111/93-C also is set aside. The Appellate Tribunal is directed to revive the appeal and hear the same on merits, according to law. No costs.