Madras High Court
Mr.Ramki vs The Additional Commissioner Of Customs ... on 7 June, 2017
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2017 CORAM THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER And THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.A.Nos.342 to 347 of 2017 And C.M.P.Nos.5330 to 5332 of 2017 Mr.Ramki ... Appellant in W.A.No.342/2017 Vs. 1.The Additional Commissioner of Customs (PAU), Custom House, No.60, Rajaji Salai, Chennai 600 001. 2.The Commissioner of Customs (Appeals I) Custom House, No.60, Rajaji Salai, Chennai 600 001. ... Respondents in W.A.No.342/2017 Prayer in W.A.No.342 of 2017: Appeal filed under Clause 15 of Letters Patent praying to set aside the impugned order dated 24.10.2016 passed by the learned Judge in Writ Petition No.36582 of 2016. For Appellants : Mr.G.Derrick Sam For Respondents : Mr.T.Pramod Kumar Chopda C O M M O N J U D G M E N T
(Judgment of the Court was delivered by RAJIV SHAKDHER,J.)
1.These are six writ appeals, filed by three Assessees viz., Mr.Ramki, Mr.V.Ramachandran and Mr.Dilli Raja. These writ appeals assail the common judgment and order of the learned Single Judge, dated 24.10.2016, passed in six writ petitions, i.e.,W.P.Nos.36582 to 36587 of 2016.
2.Each of the writ petitioners, named above, have challenged both the order-in-original dated 17.12.2015, passed by the first respondent and order dated 18.07.2016, passed by the second respondent.
2.1.The learned Single Judge, via, the impugned judgment, has, after discussing the matter on merits, on the point in issue, which relates to the applicability of limitation, dismissed the writ petitions even while granting liberty to the appellants, to take recourse, to the appropriate appellate remedy.
2.2.The learned Single Judge, in terms, has permitted the appellants herein, to prefer an appeal against the order dated 18.07.2016, passed by the second respondent to the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal).
2.3.The appellants being aggrieved by the impugned judgment, as indicated above, has preferred the present appeals.
3.At the outset, the learned counsel for the appellants says that the impugned judgment, should be set aside, on the short ground, that apart from anything else, while it discusses the merits and demerits of the appellants contention and holds that the appeal preferred before the second respondent, was not within the limitation, it simultaneously accords liberty to the appellants, to prefer a statutory appeal, before the Tribunal.
3.1.The appellants contend that given the findings recorded in the impugned judgment the Tribunal would have no leeway and therefore, no purpose would be served in relegating the appellants to a statutory remedy.
3.2.We intend, to examine this submission, during the course of our discussion.
4.Be that as it may. As alluded to above, what is required to be considered by the Court, in the present appeals is, as to whether or not, the appeals which were lodged by the appellants within the condonable period, i.e., beyond the period of limitation of 60 days, but, within the period of 30 days thereafter, could be rejected, on the ground that when the pre-deposit of 7.5% of the penalty was made the condonable period had already expired.
5.In order to appreciate the point in issue, we would be required to notice the following broad facts.
5.1.Before we do that, we may indicate, that we would be referring to the three appellants, by their name, for the sake of convenience.
5.2.The record shows that on 27.02.2014, at about 18.00 hours, the Police intercepted Mr.Ramki and Mr.Dilli Raja near C.B.Road, Stanley Nagar, Chennai.
5.3.Resultantly, Mr. Ramki was subjected to search, which led to recovery of one white powder coated crude gold bangle weighing 167 grams, which apparently, was worn by him as a band and two gold biscuits, weighing about 166 grams each. The gold biscuits, were apparently kept in a special cavity, provided in the jeans worn by Mr. Ramki.
5.4.A similar personal search was conducted qua, Mr.Dilli Raja, as well, which also resulted in recovery of one white powder coated crude bangle weighing 167 grams and two gold biscuits weighing 166 grams as in the case of Mr.Ramki.
5.5.Three biscuits were recovered in Mr.Dilli Raja's case from a cavity stitched into the trousers worn by him.
5.6.Since, Mr.Ramki and Mr.Dilli Raja, were unable to produce any receipt or license, for the aforementioned gold items, which in all weighed 998 grams, a seizure was carried out and a criminal case was registered, being CCB Cr.No.113 of 2014 under Section 41 r/w Section 102 of Cr.P.C.
6.Thereafter, statements of both Mr.Ramki and Mr.Dilli Raja were recorded on 27.02.2014. On that very day, i.e 27.02.2014, both persons were arrested and produced before the Metropolitan Magistrate, George Town, Chennai.
6.1.The Magistrate remanded both Mr.Ramki and Mr.Dilli Raja to judicial custody.
6.2.The record shows, that Mr.Ramki and Mr.Dilli Raja were enlarged on bail.
6.3.Furthermore, it appears that offences under Section 41 read with Section 102 of Cr.P.C. were altered to Section 135 (i) (a) (b) of the Customs Act, 1962, (in short, the '1962 Act').
6.4.This request was permitted by the learned Metropolitan Magistrate, George Town, Chennai. Thereafter, the records, as it appears, were forwarded to the Additional Chief Metropolitan Magistrate Court, Egmore, Chennai. The record also shows that the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, vide communication dated 21.03.2014 and 25.03.2014, directed the Customs Department, to receive the seized case properties, which included, four gold biscuits and two white powder coated crude gold bangles and one blue coloured jean.
6.5.Consequent to the aforesaid, it appears, that statements of both Mr.Ramki and Mr.Dilli Raja, were recorded under Section 108 of the 1962 Act, as well.
7.It may be indicated herein, that Mr.Ramki, in his statement under Section 108 of the 1962 Act, inter-alia, stated that he had been instructed by Mr.Dilli Raja, who is his maternal uncle, to visit Imphal and collect gold items from Mr.Ramachandran, Father-in-Law of Mr.Dilli Raja.
7.1.He further indicated that Mr.Dilli Raja was in the business of Steel and Textiles. The statement made by Mr.Ramki, was indicative of the fact, that he evidently visited Imphal and collected the gold items from Mr.Ramachandran.
7.2.The details of his journey to Imphal by air were provided by Mr.Ramki. It was also indicated that since he did not know his exact address, he contacted Mr.Ramachandran on the phone, who collected him from the Airport and took him to his house.
8.In so far as Mr.Dilli Raja was concerned, he indicated that, he was in the business of real estate and that his Father-in-Law, at the time of his marriage had promised him that he would give him jewellery and that it is in this connection, he had instructed Mr.Ramki to collect the gold items from his Father-in-Law.
8.1.Mr.Ramachandran, broadly took the same stand as Mr.Dilli Raja, his Son-in-Law.
9.It is in this background, we are informed that a common show cause notice dated 21.08.2014, was issued, in which, a proposal was made for confiscation of the aforementioned gold items, and for levy of penalty.
9.1.It was, this show cause notice which was adjudicated, by the first respondent vide order dated 17.12.2015. Via, the said order, the first respondent confiscated the gold items (which, as indicated above, in all weighed 998 grams and were valued at Rs.29,23,142/-), and issued the following operative directions:
(i) the seized 998 gms of foreign marked gold bars and crude bangles valued at Rs. 29,23,142/- are confiscated under sections 111(d) of the Customs Act, 1962 read with the relevant rules of the Foreign Trade (Exemption from application of Rules in certain cases) Order, 1993;
(ii) the seized packing materials viz one blue colour jeans pant with no commercial value and used to conceal the said foreign marked gold bars are confiscated under section 119 of the Customs Act, 1962;
(iii) I impose a penalty of Rs.5,00,000/- (Rs. Five Lakhs Only) on Shri. Ramki under section 112(a) of the Customs Act, 1962.
(iv) I impose a penalty of Rs. 5,00,000/- (Rs.Five Lakhs only) on Shri. Dilli Raja under section 112(a) of the Customs Act, 1962.
(v) I impose a penalty of Rs. 5,00,000/- (Rs.Five Lakhs only) on Shri. V. Ramachandran under section 112(a) of the Customs Act, 1962.
(vi) I refrain from imposing penalty on Smt. Selvi and Smt. Alagammal under the Customs Act, 1962.
10.Being aggrieved, three separate appeals were filed by Mr.Ramki and Mr.Dilli Raja and Mr.Ramachandran.
10.1.These appeals, were initially, filed in letter format, with the second respondent on 16.02.2016. Since, the appeals were not in the prescribed format, on 19.02.2016, the second respondent informed the appellants to file the appeals, in the prescribed format.
10.2.We may, only note that the letter dated 19.02.2016, indicated that the appeal should be accompanied by 7.5% of the duty/ penalty along with the proof of deposit. This letter not only indicated the period of limitation but also the fact, that if, it was not filed within 60 days, which is the period of limitation, it would have to be accompanied by a petition for condonation of delay.
10.3.Admittedly, the appeals were filed by the appellants herein, on 17.03.2016. The said appeals were accompanied with condonation of delay application and also an application for dispensing with the requirement to deposit 7.5% of the penalty imposed.
11.The office of the second respondent vide communication dated 26.05.2016, informed the appellants that there had been an amendment in the law, with effect from 06.08.2014 and therefore, there could be no waiver of the pre-deposit of 7.5% of the penalty demanded. The appellants were informed that they were required to deposit the said penalty amount in Form Tr-6 Challan, and submit the same, along with the appeal papers, at the time of admission of the appeal.
11.1.It is pertinent to note that by this time, the condonable period had already expired, despite which, the communication dated 26.05.2016 exhorted the appellants to deposit 7.5% of the penalty imposed.
12.The appellants, consequently deposited 7.5% of the penalty imposed, on 13.06.2016. The proof of deposit, was submitted by the appellants' Consultant, with the office of the second respondent on 14.06.2014. Resultantly, the appeals were fixed for hearing by the second respondent and, thereafter the order dated 18.06.2015, came to be passed.
12.1.As indicated right at the outset, the second respondent, instead of dealing with the appeals, on merits, rejected the same, on the ground, that they were barred by limitation. In brief, the reason furnished in the order dated 18.07.2016, is that, the day on which, the prescribed pre-deposit of the penalty imposed was made by the appellants, i.e., on 13.06.2016, the appeals had been rendered inefficacious on account of limitation.
13.According to the second respondent, the appeals filed under Section 128 (1) of the 1962 Act became 'technically maintainable' only after the prescribed pre-deposit amount was made over. Therefore, as per the second respondent, since, the mandatory pre-deposit of 7.5% of the penalty imposed was made only on 13.06.2016, which was a date beyond the condonable period, the appeals were not maintainable. Consequently, the second respondent rejected the appeals.
13.1.It is, against this order, that the appellants had filed the writ petitions, to which we have made a reference, right at the outset.
13.2.The learned Single Judge, as indicated herein above, dismissed the writ petitions, and by doing so, returned the following findings of the fact, qua, the issue of limitation:
10.From the facts and what is spelt out by the petitioners, it is evidently clear that on the date when the appeals were presented in the proper format on 17.03.2016, the appeals were time barred. Though the period would have been within the condonable limit, the condonation of delay is not automatic. In terms of the provisions of the Statute, the appellant must show sufficient cause for not presenting the appeals within time and the Commissioner of Customs (Appeals) should be satisfied that the appellant was prevented by such sufficient cause. Thus, the argument that the presentation of the appeals in the proper format on 17.03.2016 was within the condonable limit is of no avail.
11. Admittedly, the payment of 7.5% of predeposit was effected only on 13.06.2016. As on that date, the Commissioner of Customs (Appeals) had no jurisdiction to entertain or admit the appeals. Therefore, the impugned orders are perfectly justified.
14.As is indicated above, though the writ petitions were dismissed, on the ground that they were not maintainable, and after having discussed the issue of limitation, on merits, opportunity was given to the appellants, to file statutory appeals, against the order-in-original and the orders of the second respondent, before the Tribunal.
14.1.Being aggrieved, the appellants have preferred the captioned appeals.
15.The arguments on behalf of the appellants have been advanced by Mr.Derrick Sam, while those on behalf of the Revenue have been advanced by Mr.Pramod Kumar Chopda.
16.Mr.Sam, in his submission has indicated that the impugned judgment ought to be set aside on the following grounds:
(i) That the learned Single Judge while granting liberty to the appellants to prefer statutory appeals with the Tribunal, has, in a sense foreclosed the appeal remedy, by returning findings of fact on the issue of limitation.
(ii) The learned Single Judge failed to appreciate that there was a perceptible difference between 'presentation of appeal' and 'entertainment of appeal'. For this purpose, the learned counsel sought to distinguish between the word 'presentation' appearing in proviso to Section 128 (2) (1) and the word 'entertain' which appears in Section 129 E (i).
(iii) That the learned Single Judge failed to advert to the judgment of another Single Judge of this Court dated 05.06.2015, passed in W.P.No.217 of 2015, in the matter of: M/s.Jupiter Impex Vs. The Assistant Commissioner of Customs (Drawback) and another.
(iv) That the learned Single Judge failed to appreciate the impact of the Circular dated 14.10.2014, which required the Revenue to give at least three opportunities or reminders, where mandatory pre-deposit had not been made, before taking any coercive measures.
17.This apart, the learned counsel for the appellants submitted that the issue raised in the appeal is no longer res integra in view of the judgment of the Supreme Court rendered in M/s.Ranjit Impex Vs. Appellate Deputy Commissioner and Another, (2013) 10 Supreme Court Cases 655.
18.Mr.Chopda, on the other hand relied upon the impugned judgment of the learned Single Judge to resist the appeals.
18.1.It was the submission of the learned counsel that while some leeway could be given to the Assessee/ the aggrieved party, in making the pre-deposit and therefore, there could be a hiatus between the lodgement of an appeal and deposit of the minimum prescribed amount of duty/ penalty, the deposit in terms of Section 129 E (i) had to be made, within the period of limitation prescribed under Section 128 (2) (1) of the 1962 Act. In other words, Mr.Chopda said that if the pre-deposit was not made, within the condonable period, then, the appeal would have to be dismissed on the ground that it was beyond limitation.
19.In support of his submission, the learned counsel relied upon the judgment of the Full Bench of this Court rendered in: State of Tamil Nadu Vs. E.P.Nawab Marakkadai, 1996 (100) STC 1.
19.1.Furthermore, the learned counsel submitted that the Circular dated 14.10.2014, would have no applicability to the present case. It was contended that, all that the Circular did was that it mandated giving an opportunity to an aggrieved party, to produce evidence in support of the mandatory deposit, but did not extend the period of limitation, as was contended on behalf of the appellants.
19.2.As regards the judgment rendered in M/s.Jupiter Impex Vs. The Assistant Commissioner of Customs (Drawback), was concerned, Mr.Chopda said that the learned Judge in that case has exercised powers under Article 226 of the Constitution of India and therefore, it being a discretionary power, the direction issued therein should be confined to the facts of that case.
19.3.Mr.Chopda, advanced a similar submission with regard to the judgment of the Supreme Court rendered in M/s.Ranjit Impex.
20.We have heard the learned counsels appearing for the parties and perused the record.
21.What emerges from the record, qua, which there is no dispute is as follows:
(i) The order-in-original was passed by the first respondent, on 17.12.2015;
(ii) The order-in-appeal was passed by the second respondent, on 18.07.2016;
(iii) The appeals, albeit, in letter format, were filed with the second respondent, by the appellants, on 16.02.2016;
(iv) Upon this error been brought to the notice of the appellants, the appeals were filed in the prescribed format on 17.03.2016. These appeals were accompanied with an application for condonation of delay and for dispensing with the pre-deposit of the disputed penalty;
(v) On 26.05.2016, the second respondent informed the appellants that the law relating to mandatory pre-deposit had undergone a change with effect from 06.08.2014, whereby, the power vested in the second respondent, to waive the deposit of penalty had been done away with. The appellants, were informed that they would have to make a mandatory deposit of penalty equivalent to 7.5% of the disputed amount. In this communication, the appellants were also informed, as regards, the period of limitation, which is, admittedly, 60 days from the date of receipt of the impugned order and, about the fact that if the appeal was preferred beyond the period of limitation, it had to be accompanied with an application for condonation of delay.
(vi) The appellants deposited 7.5% of the penalty imposed on 13.06.2016. The proof, with regard to the same, was filed by the consultant of the appellants, with the second respondent, on 14.06.2016.
22.Given these facts, what clearly emerges, is that the appeals initially, though filed in a letter format, were presented within the period of limitation. However, upon the error being pointed out to the appellants, the appeals were filed in the prescribed format, albeit, beyond the original period of limitation, but, within the condonable period i.e., within 90 days from the date of receipt of the order.
23.There is no dispute raised with regard to this fact by Mr.Chopda. The only point of attrition between the parties, before us, is, as to whether, the fact that the mandatory pre-deposit of 7.5% of the penalty imposed, which was made on 13.06.2016, could have come in the way of the second respondent, dealing with the appeals filed on merits.
23.1.The second respondent has taken the view that since the mandatory pre-deposit of 7.5% of the penalty imposed was made, beyond the condonable period, the appeals were time barred. In this behalf, we would have to examine the relevant provisions of the 1962 Act.
23.2.The relevant provisions, according to us, are Section 128 (1) read with the first proviso and Section 129 E (i) of the 1962 Act. The same are extracted hereinafter, for the sake of convenience.
128.Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals), within sixty days from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
(1-A.) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.
129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeals.- 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 half percent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs;
(ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129-A,unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against;
(iii)against the decision or order referred to in clause (b) of sub-section (1) of section 129-A, unless the appellant has deposited ten percent of the duty demanded or penalty imposed or both, 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. (emphasis is ours)
24.The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provided sufficient cause is shown for the delay in presenting the appeal. Section 129 E (i) on the other hand, provides that the second respondent shall not entertain any appeal under sub-section (1) of Section 128, unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an Officer of Customs, lower than the rank of Commissioner of Customs.
24.1.Since, the order was passed by the first respondent i.e., Additional Commissioner of Customs (PAU), the sub-clause (i) of Section 129 E was applicable, in the instant case.
24.2.Quite clearly, if the first proviso to Section 128 (1) and Section 129 E, are harmoniously construed, then, one would have to hold that, if an appeal is presented within the time, which is the original period of limitation or, within the condonable period of thirty days, then, it can only be entertained even if the appellant makes the prescribed mandatory pre-deposit thereafter.
24.3.The reason for the same is that, to our minds, the ordinary meaning of the word presenting or presentation1 could only mean 'any action or instance of lodgement of the appeal', while, entertain2 would mean 'give attention to or consideration to the matter'.
24.4.Therefore, a plain reading of the expression, 'presenting' which obtains, in proviso to Section 128 (1), as against 'entertain' which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act.
25.Mr.Chopda, during the course of his arguments, has articulated a concern on behalf of the Revenue, which is, if such an interpretation is given, then, it is likely that the aggrieved party would abuse the process of law.
25.1.While we share the concern of Mr.Chopda, it must be said that our conclusions have to be based on the language used in the Act and not based on the likelihood of abuse of the provisions by the litigants.
25.2.Having said so, in our view, the Authorities below could follow the procedure, which has been adverted to, in the Circular dated 14.10.2014, as indicated in our interim order dated 07.04.2017.
26.The Circular sensu stricto applies only vis-a-vis appeals filed with the Tribunal. Therefore, according to the procedure prescribed in the said Circular, the appellants are required to be given, at least three opportunities for processing necessary evidence of having made the prescribed mandatory pre-deposit.
26.1.The Circular, further states that if after three opportunities, the necessary evidence is not filed, then, the appeal should be numbered and placed, for a decision before the concerned Presiding Officer.
27.In our view, the same procedure could be applied even vis-a-vis appeals preferred before the second respondent i.e., The Commissioner of Customs (Appeals-I).
27.1.To our minds if this procedure is adopted it would to a great extent address the concerns of the Revenue.
27.2.Furthermore, as correctly submitted by Mr.Sam, Clause (i) of Section 129 E applies to appeals preferred to the second respondent i.e., The Commissioner of Customs (Appeals-I). While Clause (ii) and (iii) of Section 129 E apply to appeals preferred to the Tribunal, albeit, in different circumstances. The different circumstances is pivoted on the Authority from whose order appeal is preferred to the Tribunal.
28.Before we conclude, we must also deal with the submission of Mr.Chopda that the judgment of the Full Bench in the matter of: State of Tamil Nadu Vs. E.P.Nawab Marakkadai, 1996 (100) STC 1, would come in the way of the appellants.
28.1.In this behalf, Mr.Chopda has laid emphasis on the observations made by the Court in paragraph no.11 of the said judgment. For the sake of convenience, the said observations are extracted hereafter:
11.Learned counsel for the respondent laid emphasis on the following words in the said judgment:
........... We are of opinion that by the word 'entertain' here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But the very next sentence in the said judgment cuts at the very root of the respondent's contention. It is as follows:
............But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal.
29.In our view, the said observations of the Full Bench have to be read in the context of the provision, which the Court was called upon to interpret in the said case.
29.1.In that case the Court was called upon to interpret the provisions of Section 31 (1) of the Tamil Nadu General Sales Tax Act, 1959 (in short, the TNGST Act). For the sake of convenience, the same, as set out in the judgment, is extracted herein below:
6.Sub-section (1) of section 31 of the Act is as follows:
31.Appeal to the Appellate Assistant Commissioner.- (1) Any person objecting to an order passed by the appropriate authority under section 4 A, section 12, section 12 A, section 14, section 15, sub-sections (1) and (2) of section 16, section 18, sub-section (2) of section 22, section 23 or section 27 [other than an order passed by an Assistant Commissioner (Assessment)] may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction):
Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period:
Provided further that in the case of an order under section 12, section 12-A, section 14, section 15 or sub-sections (1) and 92) of section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be.
30.A perusal of the Section would show that the second proviso, on which, reliance was placed by Mr.Chopda is framed in a manner, which is perceptibly different from the language which obtains in Section 129 E of the 1962 Act.
30.1.The word 'entertain' is followed by the expression unless it is accompanied by satisfactory proof of payment of tax admitted. In other words, the second proviso to Section 31(1) of the TNGST Act, prohibited the concerned Authority from entertaining an appeal, unless it was accompanied by satisfactory proof of payment of admitted tax.
30.2.The reason being that there could be no rationale in the appellant not paying the admitted tax, as against the disputed tax. The prescription in Section 129 E of the 1962 Act pertains quite naturally to prescribed mandatory pre-deposit of disputed tax/ penalty or both.
31.There is a marked difference, according to us, in the language of the two Sections. Therefore, in our opinion, the said judgment would have no applicability to the facts of the instant case.
31.1.In our opinion, the judgment which is closer to the facts obtaining in the present case, is the judgment of the Supreme Court rendered in M/s.Ranjit Impex Vs. Appellate Deputy Commissioner and Another, (2013) 10 Supreme Court Cases 655. For the sake of convenience, the observations made by the Supreme Court in paragraph nos.2 to 4 and 6 being apposite, are set out hereafter:
2.The factual narration would exposit that the appellant herein preferred an appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of Rs.8,52,472 was required to be deposited as per the calculation made under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 (for brevity the Act) but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge disposed of the writ petition directing the assessee to comply with all the requirements as intimated by the appellate authority in the return memo dated 3-1-2011 and on such compliance, the appellate authority was directed to register the appeal and dispose of the same in accordance with the law.
3.In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that Section 51 uses the term entertain and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under Section 51 of the Act. The Division Bench came to hold that the proof of deposit of tax has to be produced at the time when the appeal is taken for consideration but not at the time of presentation of the appeal. As far as issue of adjustment is concerned, it is objected that the amount had properly been adjusted.
4.As far as the first issue is concerned, it is needless to say that the conclusion arrived by the Division Bench is absolutely justified, for a condition to entertain an appeal does not mean that the memorandum of appeal shall be retuned because of such non-compliance pertaining to pre-deposit. The only consequence is that the appeal shall not be entertained which means the appeal shall not be considered on merits and eventually has to be dismissed on that ground.
6.Having heard the learned counsel for the assessee and the learned counsel for the Revenue, we are inclined to direct that the appellant shall deposit the amount as required by the Deputy Commissioner I, Commercial Taxes vide order dated 6-1-2011 by 30-9-2013 whereafter the appeal shall be heard and disposed of on merits. As far as the adjustment/refund is concerned, it is open to the appellant to initiate any independent proceeding. The conclusion of the Division Bench with regard to the factum that there has been proper adjustment by the Department in respect of the claim made by the assessee is set aside. However, we may proceed to clarify that we have not expressed any opinion with regard to the claim of the assessee.
32.Having regard to the aforesaid, we are inclined to hold that the second respondent could not have dismissed the appeals, on the ground that the prescribed mandatory pre-deposit was made, beyond the condonable period.
33.We may, also indicate that in M/s.Jupiter Impex Vs. The Assistant Commissioner of Customs (Drawback), a Single Judge of this Court, in fact, directed the second respondent to decide the appeals, on merits, even though the prescribed mandatory pre-deposit was made, after the appeals had already been dismissed by the second respondent, on the ground that no pre-deposit had been made.
33.1.We may, indicate that in the said judgment, the learned Judge did not have the occasion to get into the fine distinction between the word 'presentation' and 'entertainment', which was put forth, for our consideration, by the learned counsels in the present case.
34.We are also of the view that the contention of Mr.Sam that the directions contained in the impugned judgment of the learned Single Judge, in a sense, are self-contradictory has some merit.
34.1.The learned Single Judge having decided the issue, on merits, could not have simultaneously given liberty to the appellants, to take recourse to an alternative remedy. We could have disposed of the appeal on this short ground alone. We have decided to deal with the issue concerning limitation, as well, since, according to us, it is a recurring issue, which could trouble the litigants in the other cases as well.
35.For the foregoing reasons, the appeals are allowed and the impugned judgment of the learned Single Judge is set aside. Consequently, the impugned order dated 18.07.2016 is set aside. The second respondent is directed to hear the appeals, on merits.
36.The appeals are disposed of in the aforesaid terms. Consequently, the connected miscellaneous petitions shall stand closed. However, there shall be no order as to costs.
[R.S.A.,J.] [R.S.K.,J.]
07.06.2017
pri/ak
Speaking Order/ Non Speaking Order
Index: Yes / No
Internet: Yes / No
To
1.The Additional Commissioner of Customs (PAU),
Custom House, No.60, Rajaji Salai,
Chennai 600 001.
2.The Commissioner of Customs (Appeals I)
Custom House, No.60, Rajaji Salai,
Chennai 600 001.
RAJIV SHAKDHER,J.
and
R.SURESH KUMAR,J.
pri/ ak
W.A.Nos.342 to 347 of 2017
And
C.M.P.Nos.5330 to 5332 of 2017
07.06.2017