TaxTMI 
TaxTMI 
2016 (7) TMI 543
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....he request of the petitioner assessee for considering the deposits made by it during the course of Investigation & Audit, towards the mandatory pre-deposit under the provisions of S.129 E of the Customs Act, 1962 for maintaining the appeal was examined and he was directed by the Commissioner to inform the assessee that his request is not acceded to. 2. Later on and consequently, another Assessing Authority viz., Assistant Commissioner (Recovery), also issued a detention notice under S.142 1(a) of the Customs Act on 5.11.2015 - Annexure H on record, detaining and restricting the petitioner from selling of any of the goods belonging to the assessee which are under the control of the Officers of the Customs and Central Excise, all over Indi....
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.... the Superintendent of that Office. The appeal of the petitioner assessee therefore, could not be entertained and heard by the CESTAT on merits and as stated at Bar, it is still lying pending without any proceedings further so far. In the aforesaid circumstances, the petitioner approached this Court seeking a direction to the Respondents to issue appropriate Certificate or communication in terms of the prayer made by the petitioner assessee to whom under the aforesaid representations that a part of the amount much larger than the pre-deposit requirement of 10%/7.5%, as required under S.129 E of the Customs Act, be issued so that the Tribunal may proceed to hear the appeal on merits. 5. Learned counsel for the petitioner Mr S Parthasarath....
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....in his appeal in terms of S.129 E of the Customs Act before the CESTAT since excess amount was already lying in deposit with the respondent Department itself, of course, subject to the proceedings to be now undertaken and concluded by the competent authorities. 6. These submissions are opposed by the learned counsel for Revenue Mr C Shashikantha on the ground that the respondent Commissioner of Customs had no direct control over the various deposits made by the petitioner assessee as stated in his representations since they were made at different places subject to different proceedings of Investigation and Audit pending before the various authorities and even if the petitioner wanted to have any such relaxation or adjustment of the amoun....
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.... or order referred to in clause (b) of sub-section (1) of S.129-A, unless the appellant has deposited ten per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against. Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: 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. 9. From the bare perusal of the aforesaid provisions of the Customs Act, it is clear that the Tribunal, which earlier had the power prior to the amendment of the provisions by Finance (No.2) Act, 2014 to relax or....
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....de by the assessee in this regard. Unfortunately, nothing of this sort appears to have been undertaken by the respondent Commissioner in this case. The rejection purportedly made on the office files of the learned Commissioner appears to be blithely communicated to the petitioner vide Annexure F dated 12.8.2015 by the Superintendent of the Office who states in the said communication that "I am directed by the Commissioner to inform you that your request is not acceded". These kind of communications display arrogance and non-application of mind by responsible officer of the Department viz., Commissioner who, in fact, was expected to pass appropriate quasi-judicial order after giving an opportunity of hearing to the assessee on the representa....
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....de Annexure H dated 5.11.2015 shall remain stayed as already done by an ad-interim order passed by a co-ordinate Bench of this Court on 29.5.2015 and the Tribunal CESTAT shall also not reject the appeal of the petitioner assessee in question as not maintainable, for want of aforesaid pre-deposit. The assessee may appear before the respondent Commissioner of Customs, in the first instance, on 4th July, 2016 and the respondent Commissioner is expected to pass fresh speaking order, after giving a reasonable opportunity to the petitioner assessee, within a period of one month thereof. If the amount to the extent of pre-deposit required can be adjusted out of such 'spare' or 'extra' amounts already lying deposited with the same D....