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2022 (12) TMI 1064 - AT - CustomsMaintainability of appeal - non-compliance of the statutory provisions of section 129E of the Customs Act, 1962 regarding pre-deposit of the amount - power of Tribunal/Commissioner (Appeals) to waive the requirement of pre-deposit - HELD THAT - 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. 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. The appellant has not made the pre-deposit. As the law relating to pre-deposit has been settled by the Supreme Court and the High Courts, the appeal would have to be dismissed for non-compliance of the statutory mandatory requirement - appeal dismissed.
Issues Involved:
1. Non-compliance with the statutory provisions of section 129E of the Customs Act, 1962 regarding pre-deposit. 2. Examination of the power to waive the requirement of pre-deposit post-amendment of section 129E on 06.08.2014. 3. Interpretation of the statutory right to appeal and the conditions imposed for exercising such a right. 4. Analysis of relevant judicial precedents concerning the mandatory nature of pre-deposit requirements. Analysis: 1. Non-compliance with the statutory provisions of section 129E of the Customs Act, 1962 regarding pre-deposit: The appeal was filed on 05.01.2022 with defects, including non-compliance with section 129E of the Customs Act, 1962, which mandates a pre-deposit of a certain percentage of duty or penalty before filing an appeal. Despite multiple notices and opportunities, the appellant failed to make the required pre-deposit. The appellant's counsel acknowledged the proceedings but did not comply with the statutory pre-deposit requirement even after filing the appeal. 2. Examination of the power to waive the requirement of pre-deposit post-amendment of section 129E on 06.08.2014: Post-amendment, section 129E stipulates that neither the Tribunal nor the Commissioner (Appeals) has the power to waive the pre-deposit requirement. This is a significant departure from the previous regime where the Tribunal had discretionary power to waive the deposit if it caused undue hardship. The amended section mandates that the appeal cannot be entertained unless the specified percentage of duty or penalty is deposited. 3. Interpretation of the statutory right to appeal and the conditions imposed for exercising such a right: The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others emphasized that the statutory right to appeal can be conditioned by the requirement of pre-deposit. The Court held that unless the condition precedent for filing an appeal is fulfilled, the appeal cannot be entertained. This principle was reiterated in subsequent judgments, reinforcing that the mandatory pre-deposit requirement must be complied with for the appeal to be entertained. 4. Analysis of relevant judicial precedents concerning the mandatory nature of pre-deposit requirements: Several judicial precedents were cited to support the mandatory nature of the pre-deposit requirement: - In Chandra Sekhar Jha, the Supreme Court rejected the contention that the pre-amendment provisions of section 129E should apply, affirming that the new regime mandates a fixed pre-deposit without discretionary waiver. - The Delhi High Court in Dish TV India Limited vs. Union of India & Ors. held that the statutory provision mandating a 7.5% or 10% pre-deposit cannot be waived by the courts, as the law itself provides significant relief by reducing the pre-deposit requirement. - The Division Bench of the Delhi High Court in M/s Vish Wind Infrastructure LLP and Diamond Entertainment Techno. P. Ltd. upheld that appeals filed post-amendment must comply with the pre-deposit requirement, emphasizing the absolute bar on the Tribunal to entertain appeals without the mandatory pre-deposit. - The Madhya Pradesh High Court in Ankit Mehta v/s Commissioner, CGST Indore dismissed a writ petition challenging the mandatory pre-deposit requirement, reinforcing that neither the Tribunal nor the courts have the power to waive or reduce the pre-deposit. Conclusion: The appellant's failure to comply with the mandatory pre-deposit requirement under section 129E of the Customs Act, 1962, necessitates the dismissal of the appeal. The legal principles established by the Supreme Court and various High Courts affirm that the pre-deposit condition is a mandatory prerequisite for the entertainment of an appeal, and no discretion exists to waive or reduce this requirement. Consequently, the appeal is dismissed for non-compliance with the statutory mandatory requirement.
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