KCF IMPEX PVT LTD Vs. COMMISSIONER OF CUSTOMS (IMPORT)
LAWS(BOM)-2017-8-332
HIGH COURT OF BOMBAY
Decided on August 07,2017

Kcf Impex Pvt Ltd Appellant
VERSUS
COMMISSIONER OF CUSTOMS (IMPORT) Respondents

JUDGEMENT

- (1.) Heard learned counsel appearing for the Appellant. The Appellant preferred an Appeal before the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai challenging the order dated 7th March 2015 passed by the Commissioner of Customs (Imports) JNCH, Nhava Sheva, arising out of an order in Original No.133 of 2014-15. The Adjudicating Authority by an order in Original confirmed the duty demand of Rs.7,13,45,045/- along with interest thereon against the Appellant. The Appellate Tribunal by the first impugned order dated 16th October 2014 directed the Appellant to make a pre-deposit of Rs.1 Crore in addition to the amount already paid by the two Appellants within a period of eight weeks from the said date. The Paragraph 6 of the first impugned order reads thus: "6. In the light of the foregoing, we direct the main appellant M/s.KCF Impex Pvt. Ltd. to make a predeposit of Rs.1.0 Crore (Rs.One crore only) in addition to the amount already paid and the co-appellants, Sri Vivek Kumar Agrawal and Sri. Sunil Lakhotia, to make a pre-deposit of Rs.10 lakhs each, within a period of 8 weeks and report compliance by 16/12/2014. The predeposit of Rs.One crore would only cover the differential duty liability on the 44 consignments of Gambier Star after adjusting the pre-deposit of about Rs.1.49 crore paid during investigation and appropriated in the impugned order. On such compliance, pre-deposit of the balance of dues adjudged against the appellants shall stand waived and recovery thereof stayed during the pendency of the appeals."
(2.) Thereafter, an Application for modification of the order dated 16th October 2014 was made by the Appellant which was dismissed by an order dated 23rd January 2015 passed by the Appellate Tribunal which is also impugned in this Appeal. Another Application made by the Appellant for modification of the order dated 16th October 2014 was dismissed by an order dated 17th March 2015. As a result of failure of the Appellant to comply with the order of pre-deposit dated 6th April 2015, the Appeal preferred by the Appellant before the Appellate Tribunal has been dismissed.
(3.) The first submission of the learned counsel appearing for the Appellant was that the Appellant had specifically pleaded financial hardship before the Tribunal when the Application for interim relief was argued on 15th September 2014. He invited our attention to the averments made in the Application for modification (Exhibit-J) and in particular in Clause (B) thereof. Secondly, he relied upon the statutory amendment made with effect from 6th August 2014 requiring the deposit of 7.5%. His submission is that some of the High Courts held that though the amendment was brought into force with effect from 6th August 2014, it will apply to the Appeals filed prior to 6th August 2014. He, however, invited our attention to a decision of a Division Bench of this Court in the case of Nimbus Communications Limited v. Commissioner of S.T., Mumbai-IV, 2016 44 STR 578 (Bom.), wherein a view is taken that the amendment which was brought into force on 6th August 2014 was not applicable to the Appeals filed prior to the said date. Lastly he invited our attention to the ground taken in the modification application that considering the amendment in Section 28 of the Customs Act, 1962, the Delhi High Court has been pleased to grant stay of operation of amendment carried out to Sub-section (11) of Section 28 of the Customs Act, 1962. He submitted that the substantial question of law arises for consideration of the Court in view of the aforesaid submissions.;


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