2022 (4) TMI 787 - AT - Customs

Maintainability of appeal - non-deposit of the statutory amount under Section 129E of the Customs Act, 1962 - HELD THAT - It would be seen from a bare perusal of section 129E of the Customs Act that after 6.8.2014 neither the Tribunal nor the Commissioner (Appeals) have the power to waive the requirement of pre-deposit, unlike the situation which existed prior to the amendment made in section 129E on 06.08.204 when the Tribunal, if it was of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship, could dispense the said deposit on such conditions as it deemed fit to impose so as to safeguard the interest of the Revenue. The Supreme Court in NARAYAN CHANDRA GHOSH VERSUS UCO BANK 2011 (3) TMI 1478 - SUPREME COURT , examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act. The appeal is dismissed.

Summary

Issues Involved:
1. Non-deposit of the statutory amount under Section 129E of the Customs Act, 1962.
2. Repeated failure to remove procedural defects in the appeal.
3. Legal implications of non-compliance with the pre-deposit requirement under Section 129E of the Customs Act.

Detailed Analysis:

1. Non-deposit of the statutory amount under Section 129E of the Customs Act, 1962:
The appeal was filed on December 22, 2020, with five defects, including the non-deposit of the statutory amount under Section 129E of the Customs Act, 1962. Despite multiple opportunities and adjournments provided by the Tribunal, the appellant failed to make the required pre-deposit. Section 129E stipulates that the Tribunal or Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited a specified percentage of the duty or penalty in dispute. The Tribunal emphasized that post the amendment on August 6, 2014, neither the Tribunal nor the Commissioner (Appeals) has the power to waive this requirement.

2. Repeated failure to remove procedural defects in the appeal:
The Tribunal noted that the appellant was repeatedly informed about the defects in the appeal and was given multiple opportunities to rectify them. Despite this, the appellant neither appeared nor removed the defects. The Tribunal highlighted the appellant's consistent failure to comply with the procedural requirements, which included the crucial statutory pre-deposit.

3. Legal implications of non-compliance with the pre-deposit requirement under Section 129E of the Customs Act:
The Tribunal referred to several judicial precedents to underline the mandatory nature of the pre-deposit requirement. The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others and subsequent cases like Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors and Chandra Sekhar Jha vs Union of India and Another reiterated that statutory conditions for appeal, such as pre-deposit, are mandatory and cannot be waived by the Tribunal. The Delhi High Court in Dish TV India Limited vs. Union of India & Ors. and M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), New Delhi, and the Madhya Pradesh High Court in Ankit Mehta v/s Commissioner, CGST Indore also supported this view, emphasizing that courts cannot override explicit statutory requirements.

Conclusion:
Given the appellant's failure to comply with the mandatory pre-deposit requirement under Section 129E of the Customs Act and the consistent judicial stance on the non-waivability of such statutory conditions, the Tribunal dismissed the appeal. The Tribunal's decision aligns with the established legal principles that mandate compliance with statutory pre-deposit requirements as a condition precedent for entertaining appeals.