By TIOL News Service

MUMBAI, DEC 30, 2014: THE CC (Preventive), Mumbai vide orders-in-original dated July, 2014 classified the coal imported by the appellant as "bituminous coal" and consequently confirmed a duty demand of Rs.1,86,91,478/- against M/s Asian Natural Resources and Rs.2,13,72,835/- against M/s Bhatia Global Trading, apart from interest thereon and imposing penalties.

The appellants are before the CESTAT with Miscellaneous applications and have urged that the case be heard without insisting on any pre-deposit and, therefore, the appeal be admitted.

The Miscellaneous applications were heard recently.

It is submitted by the appellant that the appeals filed against orders which were passed prior to the amendment in section 129E of the Customs Act (vide FA, 2014) will not be governed by the amended provisions and the same would apply only in respect of orders passed after amendment came into force. Reliance is placed on the apex court decision in CCE vs.A.S.Bava - 2002-TIOL-350-SC-CX wherein it is observed that right of appeal is a substantive one and if any pre-deposit is required to be made it would whittle down the substantive right of appeal. Accordingly, it is pleaded that the appeal be heard without insisting on any pre-deposit.

The AR submitted that the provision of section 129E mandates pre-deposit of the duty at the rate prescribed therein and such a requirement cannot be waived.

The Bench after extracting the provisions of s.129E of the Customs Act, 1962 as substituted by the Finance Act, 2014 observed -

"…A plain reading of the provisions make it abundantly clear that the Tribunal or Commissioner (Appeals) shall not entertain any appeal under section 128, unless the appellant has made a pre-deposit of 7.5% of the duty in such cases, where duty and penalty is in dispute and appeal is filed before tribunal. Therefore, in terms of amended section 129E with effect from 06/08/2014, this tribunal is barred from entertaining any appeal unless the pre-deposit as mentioned in section 129E is complied with. The law is very clear and there is no ambiguity in the matter. In view of the above, we hold that the appeal is not admissible before this Tribunal, inasmuch as the appellants have not complied with the pre-deposit requirements envisaged in section 129E…."

In fine, the Misc. applications were dismissed and consequently the appeals too met a similar fate.

In passing: On the captioned issue, this is what the CESTAT Circular dated October 14, 2014 says -

"2. The above said provisions came into force with effect from 06.08.2014. However, some of the appellants/ consultants/ Counsels while presenting appeals are expressing reluctance in compliance with the condition of mandatory deposit stipulated under the Act as amended. Some of them have contend that as the Show Cause Notice was issued and demand confirmed earlier to 06.08.2014, the amended provisions are not applicable to their case. Few of them have relied upon judgments of various judicial forums to claim exemption from the mandatory deposit while filing appeal. It is pertinent to mention that no such exemption has been contemplated either in the amended provision of the Act statutes, or even in the clarificatory circular issued by the CBEC on the subject.

3. In view of above, DRs/ARs/TOs of all Benches are directed that if no evidence in support of mandatory deposit is produced while filing appeal, such appeals, after providing three opportunities/reminders, be numbered and listed on Fridays before the Court presided by the Senior Member, for appropriate orders."

Also read - Customs - Classification - Bituminous coal or Steam Coal - In view of conflicting decisions by Chennai and Bangalore Bench, matter referred to Larger Bench: CESTAT. - 2014-TIOL-2503-CESTAT-MAD. And Rutuja Ispat Pvt. Ltd. 2014-TIOL-2629-CESTAT-MUM.

(See 2014-TIOL-2637-CESTAT-MUM)