Custom, Excise & Service Tax Tribunal
Sri Sambhu Nath Dubay vs Kolkata(Prev) on 15 February, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.3
Customs Appeal No. 78362 of 2018
Arising out of Order-in-Appeal No.KOL/CUS(CCP)/AA/1009/2018 Dated 01.06.2018
passed by Commissioner of Customs (Appeals), Kolkata.
Sri Sambhu Nath Dubay
(S/o. Late Shew Harsh Dubay
89, Monohar Das Street, Kolkata-700007)
Appellant (s)
VERSUS
Commr. of Customs (Preventive), Kolkata
(3rd Floor, Customs House, 15/1, Strand Road, Kolkata-700001)
Respondent (s)
APPERANCE :
None for the Appellant
Shri S. Chakraborty, Authorized Representative for the Respondent
CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL)
FINAL ORDER NO......75072/2023
Date of Hearing : 15 February 2023
Date of Decision : 15 February 2023
ORDER
None appeared on behalf of the Appellant. The Ld. DR draws the attention to the Para 14 of the impugned OIA which reads as under:-
14. I find that, Hon'ble CESTAT in the case of AI CHAMPDANY INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., KOLKATA-
IV, reported in 2016 (342) E.L.T. 137 (Tri.-Kolkata), has held the following:
"6. A plain reading of the aforesaid provision makes it abundantly clear that the Tribunal or Commissioner shall not entertain any appeal under Section 35 unless the appellant has made pre-deposit of applicable amount mentioned in the said provision. Therefore, in terms of the amended Section 35F of CEA, 1944 w.e.f. 6th August, 2014, this Tribunal is barred from entertaining any appeal unless pre-deposit as mentioned in Section 35F is complied with. It is a cardinal principle of statutory interpretation that while incorporating a statute or a provision into the existing statute, the Legislatures are fully aware of the position of law as was prevailing on the date of new legislation or bringing the 2 Customs Appeal No. 78362 of 2018 change into the existing legislation. We find the law, i.e., amended Sec.35F of CEA, 1944 is very clear and unambiguous and the intention of the Legislature is also loudly made clear about its applicability. Needless to emphasize, the Tribunal is a creature of the statue and accordingly bound by the statue as has been held recently by the Hon'ble Andhra Pradesh High Court in the case of Maa Mahamaya India Ltd. v. CCE, C & ST, Vishakhapatnam-I-2014 (310) E.L.T. 244 (A.P.). Also, we find that the Co-ordinate Bench at Mumbai in M/s. Bhatia Global Trading Ltd. v. Commissioner Customs (Preventive), Mumbai (supra) has dismissed the appeals filed after 6-8-2014 for non-
compliance with the statutory requirement of pre-deposit. In view of the above, these appeals are not maintainable and accordingly, the same are dismissed."
Since in the instant case, the appellant did not deposit the required pre- deposit amount as per Section 129 (E) of the Customs Act, 1962, the Appeal is liable to be rejected for non-compliance with the statutory requirement of pre-deposit. Accordingly, I refrain from going into the merit of the same
2. He also points out at Page 14 of the present Appeal where the appellant has enclosed the pre-deposit challan for Rs.20,000/- being 10% of the contested amount of Rs.2,00,000/-.
3. It is seen that the Commissioner (Appeals) has dismissed the Appeal only on account of non-fulfilment of the pre-deposit condition without going into the merits. As the Appellant has made the pre- deposit now, the case stands remanded to the Commissioner (Appeals), who will follow the Principle of natural justice while dealing with this Appeal.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja