SILCO AGENCIES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly after dispensing with pre -deposit, we take up the appeal for disposal.

(2.) THE appeal is against an order passed by the Commissioner (Appeals) rejecting the assessee's appeal (filed against an adverse order of the original authority) on the sole ground of non -compliance with Section 129E of the Customs Act. The original authority had demanded anti -dumping duty of over Rs. 2.3 crores on "Compact Fluorescent Lamps" imported by the assessee from Hong Kong in November, 2002. The demand was in terms of Notification No. 138/2002 -Cus., dated 10.12.2002 issued by the Central Government finalising the provisional assessment of the goods to anti -dumping duty with effect from 21.12.2001. The order of the original authority was taken in appeal to the Commissioner (Appeals) on the ground that, at the time of importation, there was no provisional anti -dumping duty on the goods. This contention of the assessee was on the premise that Notification No. 128/2001 -Cus., dated 21.12.2001 which imposed anti -dumping duty provisionally on the goods imported from Hong Kong had no life beyond 6 months from the said date. Along with their appeal before the lower appellate authority, the party also filed an application for waiver of pre -deposit and stay of recovery in respect of the duty demanded. This application was disposed of on merits by ld. Commissioner (Appeals) as per order dated 27.10.2004, wherein the appellants were directed to pre -deposit the entire amount of duty on or before 15.11.2004. The amount was not deposited. Consequently, the appeal happened to be dismissed for non -compliance with Section 129E ibid.

(3.) LD . Counsel submits that their application for modification of the stay order passed by the lower appellate authority was not considered by that authority. In answer to queries from the Bench, it is submitted that such application was filed only on 2.12.2004 i.e., after the expiry of the time granted by the appellate authority to the assessee for making the pre -deposit. Obviously, the appellate authority had no occasion to consider any such application.