By TIOL Service News

MUMBAI, FEB 08, 2015 : PENALTY of Rs.5000/- imposed against the appellant is challenged before the CESTAT.

The appeal was listed for admission in view of clause (iii) of second proviso to section 129A of Customs Act, 1962 which lays down that if the amount is less than Rs.2 lakhs the appellate Tribunal has discretion to admit the appeal or otherwise.

The appellant submitted that as per the second proviso to section 129A this discretion is available only in respect of the appeal filed against order specified under clause (b), (c) and (d) of sub-section (1) of section 129A.

Inasmuch as since the present appeal was filed against order passed by the Commissioner of Customs (Adj), NCH, Mumbai &which falls under clause (a) of sub-section (1) of section 129A, therefore, the discretionary powers given to the Tribunal do not apply in the present case.

The AR fairly conceded with the submissions made.

The Bench took a closer look at the provisions of section 129A of the Customs Act, 1962 and after extracting the same observed -

"…From the second proviso, it is clear that the discretion of the appellate Tribunal to admit the appeal is provided only in respect of the appeals filed against order specified under clause (b), (c) and (d) and not in respect of order specified under clause (a) of sub-section (1) of section 129A of Customs Act, 1962.

5.1 The present appeal is admittedly filed against order of the Commissioner which is covered under clause (a) therefore there is no discretion of this Tribunal whether not to admit the appeal. Therefore, the appellant has statutory right of appeal against order passed by the Commissioner, irrespective of any amount involved…."

The appeal was admitted.

(See 2015-TIOL-280-CESTAT-MUM)