- (1.) By this petition, a challenge is made to the order dated 13-10-2015, whereby, the appeal preferred by the petitioner before the Commissioner, Central Excise and Customs (Appeals), Jaipur has been dismissed in absence of compliance of requirement of pre-deposit as per Section 129E of the Customs Act, 1962.
(2.) Learned counsel for the petitioner submits that aggrieved by the order passed by the Deputy Commissioner, Customs, an Appeal was preferred. After keeping the appeal pending for more than 10 months, it was dismissed without hearing the petitioner though is required as per Section 128 of the Act of 1962. The Commissioner (Appeals) even failed to consider an application was submitted by the appellant to inform that entire amount has already been recovered with encashment of Bank guarantee hence, condition to deposit 7.5% of the amount of duty stands satisfied. Ignoring the fact available on record, the appeal was dismissed, that too, by making comments/observations contrary to the record. The amount so recovered was not towards penalty, rather, the Bank guarantee was given against the Customs duty and if Bank guarantee is encashed, it is to be taken in satisfaction of the demand towards duty. The prayer is to set aside the impugned order with remand of the case for hearing of the appeal on merit. It is more so when during the intervening period of 10 months or so the appellant was never informed about non-payment of Customs duty to the extent of 7.5% to satisfy requirement of pre-deposit.
(3.) Learned counsel Mr. Vinay Mathur, appearing for the Revenue, has contested the case. It is submitted that chance of hearing under Section 128 is given only when the appeal is admitted. In the instant case, the petitioner failed to comply condition of Section 129E of the Act of 1962 thus, the appeal was not maintainable, hence, rightly dismissed by the Commissioner (Appeals).;