9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (9) TMI 61 - AT - Central ExciseMaintainability of appeal - defect relating to non-compliance of the mandatory deposit were not satisfied - HELD THAT - It would be seen from a bare perusal of section 35F of the Customs Act that after August 06, 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 35F on August 06, 2014 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. It will also be appropriate to refer to a decision of the Delhi High Court in DISH TV INDIA LIMITED VERSUS UNION OF INDIA AND ORS. 2020 (8) TMI 183 - DELHI HIGH COURT , wherein the requirement of pre-deposit under section 129E of the Customs Act, came up for consideration. The High Court held that when the Statue itself provided wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and made it mandatory to deposit 7.5% or 10% of duty amount, the Courts cannot waive this requirement of deposit. The appellant has not made the pre-deposit. In view of the aforesaid decisions of the Supreme Court, and Delhi High Court, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit - appeal dismissed.
Issues Involved:
1. Non-compliance with mandatory pre-deposit requirement. 2. Failure to remove defects in the appeal. 3. Absence of appellant representation during hearings. Issue-wise Detailed Analysis: 1. Non-compliance with Mandatory Pre-deposit Requirement: The appeal was dismissed primarily due to the appellant's failure to comply with the mandatory pre-deposit requirement as stipulated under Section 35F of the Central Excise Act, 1944, which is applicable to service tax matters via Section 83 of the Finance Act, 1994. The Tribunal emphasized that after the amendment on August 06, 2014, neither the Tribunal nor the Commissioner (Appeals) has the power to waive the pre-deposit requirement. The statutory mandate requires an appellant to deposit a certain percentage of the duty demanded or penalty imposed before an appeal can be entertained. The Tribunal cited the Supreme Court's ruling in Narayan Chandra Ghosh vs. UCO Bank, which reinforced that statutory conditions for appeal, such as pre-deposit requirements, are mandatory and cannot be waived by appellate bodies. 2. Failure to Remove Defects in the Appeal: The appeal was filed with six defects, including the critical defect of non-compliance with the mandatory deposit. Despite notices sent to the appellant on March 3, 2022, and again on July 22, 2022, the appellant failed to rectify these defects. The Tribunal noted that the appellant removed only two defects and did not address the remaining issues, including the mandatory deposit. The Tribunal's order highlighted that the appellant's non-compliance persisted despite multiple opportunities and adjournments granted in the interest of justice. 3. Absence of Appellant Representation During Hearings: The Tribunal observed that no one appeared on behalf of the appellant during the hearings on May 25, 2022, and August 29, 2022. This absence further compounded the appellant's non-compliance issues. The Tribunal underscored the importance of representation and active participation in the judicial process, especially when procedural defects need to be addressed. Legal Precedents and Statutory Interpretation: The Tribunal referenced several judicial precedents to support its decision. The Supreme Court's decisions in Narayan Chandra Ghosh, Kotak Mahindra Bank Pvt. Limited vs. Ambuj A. Kasiwal, and Chandra Sekhar Jha were cited to underline the mandatory nature of pre-deposit requirements. The Tribunal also referred to the Delhi High Court's rulings in Dish TV India Limited vs. Union of India and M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), which reiterated that courts cannot waive statutory pre-deposit requirements. Additionally, the Madhya Pradesh High Court's decision in Ankit Mehta v/s Commissioner, CGST Indore was mentioned, which dismissed a writ petition on similar grounds of non-compliance with pre-deposit requirements. Conclusion: In conclusion, the Tribunal dismissed the appeal due to the appellant's failure to comply with the mandatory pre-deposit requirement, non-removal of procedural defects, and absence during hearings. The Tribunal's decision was grounded in statutory mandates and reinforced by multiple judicial precedents that underscore the non-waivable nature of pre-deposit conditions for maintaining an appeal.
|
