2015 (4) TMI 952 - HC - Customs

Court waives pre-deposit for appeal, petitioner exempt from 7.5% duty, ensuring appeal rights

M/s Sea Breeze Courier Versus Commissioner of Central Excise Customs & Service Tax

The court allowed the review petition, disposing of the writ petition with directions that the petitioner could proceed with the appeal before the ... Waiver of pre deposit - Held that:- Since this Court was relegating the petitioner to the alternate remedy of filing an appeal before the Appellate Tribunal, it was not considered appropriate to deal with the merits of Ext.P8 order, that was passed by the respondent and which was impugned by the petitioner in the appeal before the Appellate Tribunal. I notice, however, that in a later case that came up for consideration before this Court, this Court, after considering a similar contention with regard to the statutory right of appeal being hedged by onerous conditions, took a view that, in cases where the commencement of the lis was prior to the introduction of the amendment to the Customs Act with effect from August 2014, the assessee's right of appeal, as per the erstwhile provisions of law, would not be effected by the provisions introduced by the amendment of 2014. In the case of the petitioner also, it is seen that the commencement of the lis was prior to the introduction of the amendment to the Customs Act with effect from August 2014. - Order recalled. Issues:Challenge of an order under the Customs Act,1962; Legality of pre-deposit condition for appeal before Appellate Tribunal; Right to appeal under the Statute; Review of judgment not specifically addressing contentions against the impugned order.Analysis:The petitioner filed a petition challenging an order passed by the respondent under the Customs Act,1962. The petitioner was directed to pay 7.5% of the duty confirmed against him by the order as a condition for maintaining an appeal before the Customs, Excise and Service Tax Appellate Tribunal. The petitioner contended that this condition deprived him of the right to appeal. The court extended the time for compliance with the deposit condition till a specified date, emphasizing the necessity of the pre-deposit before the Appellate Tribunal.In the review petition, the petitioner argued that the previous judgment did not specifically address the challenge against the impugned order. The court noted that the challenge was not elaborated upon in the previous judgment due to the petitioner already filing an appeal before the Appellate Tribunal. The court referenced a similar case where it was held that the right of appeal under the old provisions of the law would not be affected by new amendments if the case commenced before the amendment. Applying this principle, the court recalled the previous judgment and disposed of the writ petition with specific directions.The court reiterated the legal principle that the right of appeal is governed by the law prevailing at the time of the institution of the suit or proceedings. In this case, since the dispute began before the 2014 amendment, the petitioner was not required to make the 7.5% pre-deposit. The petitioner was allowed to proceed with the appeal and waiver application before the Appellate Tribunal without the pre-deposit condition. The Tribunal was instructed to consider the waiver application on its merits and proceed with the appeal accordingly.Therefore, the review petition was allowed, and the writ petition was disposed of with the above directions, ensuring the petitioner's right to appeal without the burden of the pre-deposit condition under the amended law.