2021 (3) TMI 103 - AT - Customs

CESTAT Mumbai: Pre-deposit not required if order set aside for fresh adjudication

The Appellate Tribunal CESTAT Mumbai held that the appeals were maintainable as no contrary judgment or practice was presented. The Tribunal emphasized ... Maintainability of appeal - compliance with the requirement of pre-deposit - Revenue submits that she has sent reminders but failed to receive any report on the issue - HELD THAT:- This Tribunal in similar circumstances, vide Interim Order No.I/127-131/2019 dated 30th July 2019 in appeal Diary No. 870602019 held that Since the order has been set aside by the learned Commissioner (Appeals) for fresh adjudication by the lower authority, therefore, no duty nor any penalty as on date is crystallised against the appellants. Therefore, the pre-deposit, cannot be insisted in accordance with Section 129E of the Customs Act, 1962. Consequently, the defect memo is discharged and the appeals are maintainable, which will be heard in due course. No contrary judgment nor any contrary practice of any other Commissionerates was placed, inspite of sufficient time being allowed to the department - appeal maintainable. Issues Involved:Examination of maintainability of appeals based on circulars and practice followed by other Commissionerates.Analysis:The judgment by the Appellate Tribunal CESTAT Mumbai revolves around the maintainability of appeals in a case where both sides were directed to provide any circular issued by the Board on the subject. The appeals were listed on multiple occasions, with the Revenue seeking time to refer to the Board for clarification on the practice followed by other Commissionerates. However, despite the time granted, no report or clarification was received. The Tribunal referred to a previous precedent dated 30th July 2019, where it was held that if an order has been set aside for fresh adjudication, no duty or penalty is crystallised against the appellants, and pre-deposit cannot be insisted. Since no contrary judgment or practice was presented, the Tribunal concluded that the appeals are maintainable and should be heard in due course.