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2022 (9) TMI 593 - AT - CustomsMaintainability of appeal - non-deposit of the statutory amount contemplated 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. A Division Bench of Delhi High Court in M/S. VISH WIND INFRASTRUCTURE LLP, M/S. J.N. INVESTMENT TRADING CO. PVT. LTD. VERSUS ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI 2019 (8) TMI 1809 - DELHI HIGH COURT examined the provisions of section 35F of the Central Excise Act, 1944 which are pari materia to section 129E of the Customs Act and held that every appeal filed before the Tribunal after the amendment made in section 35F of the Excise Act and section 129E of the Customs Act on 06.08.2014 would be maintainable only if the mandatory pre-deposit was made. Thus, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit - appeal dismissed.
Issues Involved:
1. Non-deposit of the statutory amount under section 129E of the Customs Act, 1962. 2. Compliance with procedural requirements for filing an appeal. 3. Jurisdiction and power of the Tribunal to waive the pre-deposit requirement. Detailed Analysis: Issue 1: Non-deposit of the statutory amount under section 129E of the Customs Act, 1962 The appeal was dismissed primarily due to the appellant's failure to comply with the statutory requirement of pre-deposit as mandated by section 129E of the Customs Act, 1962. The Tribunal emphasized that the appellant did not deposit the mandatory amount despite repeated opportunities. The statutory requirement under section 129E is clear: an appeal cannot be entertained unless the appellant deposits a specified percentage of the duty or penalty. This requirement is non-negotiable and must be fulfilled for the appeal to be maintainable. The Tribunal noted that the appellant neither provided reasons for not depositing the amount nor filed an application seeking time for the pre-deposit. Issue 2: Compliance with procedural requirements for filing an appeal The Tribunal highlighted procedural lapses by the appellant, including the failure to rectify defects in the appeal despite being notified. A notice dated July 27, 2022, was sent to the appellant to remove the defects, but no action was taken. The Tribunal stressed that procedural compliance is crucial for the proper administration of justice and the smooth functioning of the appellate process. The appellant's non-compliance with procedural requirements further justified the dismissal of the appeal. Issue 3: Jurisdiction and power of the Tribunal to waive the pre-deposit requirement The Tribunal clarified that post the amendment of section 129E on August 6, 2014, it no longer has the power to waive the pre-deposit requirement. This amendment removed the discretion previously available to the Tribunal to waive or reduce the pre-deposit if it caused undue hardship. The Tribunal cited several judicial precedents to support this position, including the Supreme Court's decisions in Narayan Chandra Ghosh vs. UCO Bank and Others and Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors, which affirmed that the pre-deposit requirement is mandatory and non-negotiable. The Tribunal also referred to decisions by the Delhi High Court and the Madhya Pradesh High Court, which consistently held that the statutory requirement of pre-deposit must be strictly adhered to, and neither the Tribunal nor the courts have the authority to waive it. Conclusion: The appeal was dismissed due to the appellant's failure to comply with the mandatory pre-deposit requirement under section 129E of the Customs Act, 1962, and procedural non-compliance. The Tribunal reiterated that it lacks the jurisdiction to waive the pre-deposit requirement, as established by the amendment to section 129E and supported by judicial precedents. The appeal, therefore, deserved to be dismissed and was dismissed accordingly.
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