R.K.S. Agro Tech Ltd. vs Commissioner of Customs

Dilip B. Bhosale, J.—These appeals are directed against the orders dated December 27, 2012 and February 25, 2013, passed by the Customs, Excise and Service Tax Appellate Tribunal South Zonal Bench at Bangalore (for short "the CESTAT"), rejecting an application bearing Miscellaneous Order No. 25230/2013 in Customs Appeal Nos. 919, 929 and 599 of 2010. The appeals were directed against the order dated November 30, 2009 passed by the Commissioner of Customs, calling upon the appellant to pay the customs duty, penalty and interest as indicated in the operative portion of the order. The appellant along with the appeal had filed an application seeking stay of the order dated November 30, 2009 passed by the Commissioner of Customs and for dispensation of pre-deposit as required u/s 129E of the Customs Act, 1962 (for short "the Act"). The CESTAT by its order dated December 27, 2012 directed the appellant to deposit a sum of Rs. 1.5 crores towards customs duty and a sum of Rs. 5 lakhs towards Central excise duty within six weeks and stayed the deposit of remaining amount. Thereafter, the appellant filed a miscellaneous application and sought recall of the order dated December 27, 2012, whereby, the CESTAT had directed deposit of the customs duty and Central excise duty, as aforementioned, for maintaining/filing the appeal as contemplated u/s 129E of the Act. In short, what is under challenge in the present appeals is the order, whereby, the prayer of the appellant to examine, whether he was liable to pay the amount demanded (duty and interest or the penalty levied) even before depositing of the amount as per the order dated December 27, 2012 passed u/s 129E of the Act.

The learned counsel for the appellant submitted that the CESTAT did not examine the question, whether the appellant is liable to pay the duty and interest or the penalty levied as per the order dated November 30, 2009 passed by the Commissioner of Customs. In other words, he submitted that since the appellant, on the merits of the case is not liable to pay any duty and interest as per the order dated November 30, 2009, the CESTAT was not justified in asking the appellant to deposit the amount, as aforementioned, without examining the challenge of its correctness and legality. He submitted that the CESTAT also failed to consider, whether the appellant is entitled for depreciation as per the Board''s circular dated June 5, 1992 issued by the Ministry of Finance, Central Board of Excise and Customs, Government of India.

We have perused the impugned order as well as the orders dated December 27, 2012, February 25, 2013 and so also the order passed by the Commissioner dated November 30, 2009, We have also perused the section 129E of the Act.

Section 129E of the Act provides that, wherein any appeal under Chapter XV, the decision or order appealed against relates to any duty and interest, demanded in respect of goods, which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer "duty and interest demanded or penalty levied", provided that, where in any particular case, the appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause "undue hardship" to such person, the Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of the Revenue.

It is thus clear that a discretion is conferred on the CESTAT to dispense with such deposit, if deposit of duty and interest demanded or penalty levied is likely to cause "undue hardship" to such person. In the present case, the ground on which the dispensation of deposit sought was on the merits. In other words, it was on the ground that the demand itself is wrong and illegal. Thus, the appellant was expecting the Tribunal to examine the legality and correctness of the order dated November 30, 2009 passed by the Commissioner of Customs on the grounds raised in the appeal even before deposit of the amount as per the order dated December 27, 2012. If such submission is entertained and accepted, that would defeat the very object of the provisions contained in section 129E of the Act. That apart, in the present case, dispensation of deposit of the amount was not sought on the ground that it would cause undue hardship to the appellant.

In our opinion, having considered the intendment of the Legislature in introducing the provisions contained in 129E of the Act, it is not open to the appellant to seek dispensation on the merits of the case and it is mandatory for such appellant to deposit the amount, as contemplated u/s 129E of the Act, without prejudiced to his rights and contentions raised in the memorandum of appeal, to be argued at the stage of final hearing of the appeal. We do not find any reason to interfere with the order passed by the Tribunal in these appeals. Hence, the appeals are dismissed.