By TIOL News Service

MUMBAI, AUG 22, 2015: THE Commissioner of Customs (E.P), Mumbai passed an order deciding the product classification and also holding that the goods were liable for confiscation but since the goods were not available a fine of Rs.10 lakhs was imposed. A penalty of Rs.1 lakh is also imposed on the appellant. This order was passed on 29.08.2007.

The appeal filed against this order was dismissed by the Tribunal vide Order no. A/840/14/CSTB/C-I dt. 29/4/2014 on account of delay in filing the appeal.

The appellant filed an appeal before the Bombay High Court the same was allowed vide an order dated 23.03.2015.

We reported this order 2015-TIOL-1089-HC-MUM-CUS thus -

Cus - Order allegedly served by speed post - since Registered post and not Speed-Post is mentioned u/s 37-C of the CEA , 1944/s. 153 of Customs Act, 1962, service of notice by Speed-Post is not valid in law - even according to the Respondent Revenue, the order was sought to be served by Speed-Post and since there is not even an acknowledgement in token of service by the Speed-Post, there was no valid service in law - since the service of the o-in-o was not in accordance with law, the Tribunal was not justified in dismissing the application for condonation of delay - recourse to clause (b) of Section 153 would be permissible only in the event it is not possible to serve the order by the mode prescribed in clause (a) of the said Section - Order of Tribunal quashed and set aside - application for COD before Tribunal stands allowed: High Court [ para 9, 10, 11]

And thus the appeal was restored before the Tribunal.

The matter was heard recently and the Bench observed -

"2. As far as the fine is concerned, we find that the same cannot be imposed when the goods are not available for the confiscation. As regards the penalty, we find from the records that the appeal was dismissed by the Tribunal vide Order no. A/840/14/CSTB/C-I dt. 29/4/2014 on account of delay in filing the appeal. However, the same was restored by the Hon'ble High Court of Mumbai vide its order dt. 23.03.2015. As the appeal has been restored after the amendment of Section 129E in August 2014, we direct the appellants to pay 7.5% of the penalty i.e of Rs.7,500/- within two weeks from the date of this order in compliance to the provisions of section 129E of the Customs Act. On compliance being reported the remaining amount of penalty is waived and its recovery stayed till disposal of the appeal. Compliance to be reported on 10.08.2015."

Taking the clock back: s.129E - 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.

(See 2015-TIOL-1765-CESTAT-MUM)