Regarding mandatory pre-deposit of duty or penalty for filing appeal
January, 12th 2015
F. No. 390/Budget/1/2012-JC
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Excise & Customs)
Circular No. 993/17/2014-CX
New Delhi, dated the 5th January, 2015
1. All Principal Chief Commissioners, Central Excise & Service Tax/Customs
2. All Chief Commissioners, Central Excise and Service Tax/ Customs.
3. Chief Commissioner (AR), CESTAT, New Delhi.
4. All Principal Commissioners of Central Excise & Service Tax/Customs.
5. All Commissioners of Central Excise, Service Tax and Customs
6. All Commissioners (AR), New Delhi, Mumbai, Chennai, Kolkata, Bangalore &
Sub: Mandatory pre-deposit of duty or penalty for filing appeal reg.
Attention is invited to Circular No 984/08/2014-CX dated 16th September, 2014
on the captioned subject. While para 6 of this Circular laid down the procedure and
manner of refund, para 7.2 clearly directed that the Commissionerates should maintain
a database of the record of deposits made so as to facilitate seamless verification of the
deposits at the time of processing the refund claims made in case of favourable order
from the Appellate Authority.
2. In order to maintain uniformity in the database being maintained, the following
columns are suggested to be maintained in a separate register (e-register preferably) in
the Review Cell of each Commissionerate. The following columns need to be filled in on
receipt of each appeal memo as directed in Para 6.2 of the Circular mentioned above.
The data should be maintained separately in respect of appeals before CESTAT and
(i) Sl. No.
(ii) Name of the Appellant/ Party
(iii) Details of duty paying document viz Challan etc
(iv) Amount of pre-deposit paid
(v) Order No and date of the order of Commissioner(A)/Tribunal
3. Rule 17 of the CESTAT (procedure) Rules, 1982 stipulates that a copy of the
appeal memo is to be sent to the Departmental Representative as well as to the
Executive Commissionerate. This is required to be done by the Tribunal registry where
the appeal memo is received. It has been brought to the notice of the Board that
appeals filed before the Tribunal on or after 6 th August are not being sent to the
Commissionerate. Therefore, it is emphasized that Rule 17 ibid has to be followed and
the Tribunal Registry must send a copy of the appeal memo to the Commissionerate
immediately after receipt. Similarly, a copy of the appeal memorandum filed before the
Commissioner (Appeal) must be sent to the Commissionerate concerned by the office
of the Commissioner (Appeals). This would help in processing the refund claims
4. Para 1.2 of the Circular ibid stated that amended provisions would apply to
appeals filed after 6th of August, 2014. An Act of Parliament comes in to effect on the
date it received the assent of the President of India. Hence, the amended provisions
regarding filing of appeal along with stipulated percentage of pre-deposit shall apply to
all appeals filed on or after 6th August, 2014. Para 1.2 of the earlier Circular stands
5. Several representations have been received by the Board stating that some
Commissioners (Appeals) have been insisting on pre-deposit in cases of demand of
erroneous drawback granted. It has been represented that drawback is not a duty and
hence the amended provisions would not apply to such cases.
6. The issue has been examined. Drawback, like rebate in Central Excise, is refund
of duty suffered on the export goods. Section 129E stipulates that appellant filing
appeal before the Commissioner (Appeals) shall pay 7.5% of the duty demanded where
duty and penalty are in dispute. Accordingly, it is clarified that mandatory pre-deposit
would be payable in cases of demand of drawback as the new section 129E would
apply to such cases.
7. The ambit of the Section 129E of the Customs Act, 1962 in the legislation does
not extend to appeals under section 129DD before Joint Secretary (Revision
Application). Therefore, while mandatory pre-deposit would be required to be paid in
cases of drawback, rebate and baggage at the first stage appeal before
Commissioner(Appeals), no pre-deposit would be payable in such cases while filing
appeal before the JS(RA).
(Archana P Tiwari)
Joint Secretary (Judicial/Review)