Custom, Excise & Service Tax Tribunal
Gurmeet Singh Kohli vs Commissioner Of Customs (P), Mumbai on 21 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Appeal C/86084/15-Mum arising out of order-in-appeal No. MUM-CUSTM-PRV-APP-657 to 660/14-15 dated 10.2.2015 passed by the Commissioner of Customs (Appeals), Mumbai-III. Date of hearing 21.8.2015 Date of decision 21.8.2015 Gurmeet Singh Kohli Applicant Represented by: Mr. G.B. Yadav, Advocate Versus Commissioner of Customs (P), Mumbai Respondent Represented by:
Mr. S.J. Sahu, Assistant Commissioner (AR) CORAM Mr. P.K. Jain, Honble Member (Technical) ORDER No: ..
The appellant has not deposited 10% of the penalty confirmed on him as per Section 129E(iii) of the Customs Act, 1962. Registry issued a show cause notice to the appellant.
2. Learned advocate for the appellant submitted that from a common investigation, two show cause notices were issued, one to Madhura Industrial Textiles and another to Can Pack India Pvt. Ltd. The present appellant was, however, a common notice in both the show cause notices. During investigation, the appellant has deposited an amount of Rs.7,00,000/- towards his liabilities. This fact was mentioned in both the show cause notices issued to them. However, while adjudicating, the original authority appropriated the whole amount in one demand. His submission was the total liability in the show cause notices is Rs.9.4 lakhs and Rs.10,80,671/- and since he has deposited an amount of Rs.7 lakhs, this should be considered sufficient for purpose of Section 129E(iii). He also submits that the Commissioner (Appeals) has also taken similar view while deciding the appeal in the present case.
3. Learned AR submitted that as far as the present appeal is concerned, it is a show cause notice issued to Can Pack India Pvt. Ltd. and the present appellant. In the order-in-original, a penalty of Rs.10,80,671/- is imposed. Whatever amount was deposited has been appropriated by the adjudicating authority in another case and, therefore, nothing is left for the present case. Further, during investigation it is not as if the appellant has deposited particular sum for the present show cause notice. In view of these facts, the appellant has not met the requirement of Section 129E(iii).
4. I have considered the submissions. I find that Section 129E(iii) reads as under:-
129E. 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) .
(ii) .
(iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 129A, unless the appellant has deposited ten per cent, or the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against:
Provided that the amount required to be deposited under this section shall not exceed rupees 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. I find that as far as the present appeal is concerned, the order-in-original does not indicate that any amount is appropriated against the present appeal. This fact is not disputed by the learned counsel for the appellant. Whatever amount was deposited has already been appropriated in another case. The said amount cannot be taken for purpose of compliance with the requirement of Section 129E(iii).
5. Under the circumstances, the objection raised by the Registry is correct and the appellant is required to deposit 10% of the penalty imposed in the present appeal, which has not been done. In the interest of justice, the appellant is given time upto 3rd September 2015 to deposit the said amount and report compliance on 4th September 2015, pending which the appeal will be dismissed for non-compliance with the provisions of Section 129E(iii) of the Customs Act, 1962.
(Pronounced in Court) (P.K. Jain) Member (Technical) tvu 2 4 2