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2023 (3) TMI 440 - AT - Service TaxMaintainability of appeal - non-compliance with the requirement of pre-deposit under service tax - Applicability of section 35F of the Central Excise Act - HELD THAT - 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 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. In coming to this conclusion, the Division Bench relied upon the judgment of the Delhi High Court in ANJANI TECHNOPLAST LTD. VERSUS THE COMMISSIONER OF CUSTOMS 2015 (10) TMI 2446 - DELHI HIGH COURT and also observed that in view of the peremptory words shall not , there is an absolute bar on the Tribunal to entertain any appeal unless the requirement of pre-deposit is satisfied. The Madhya Pradesh High Court in ANKIT MEHTA VERSUS COMMISSIONER, CGST INDORE 2019 (3) TMI 1342 - MADHYA PRADESH HIGH COURT also dismissed the Writ Petition that had been filed against the order of the Tribunal dismissing the appeal for the reason that the required pre-deposit was not made. The contention that was advanced before the Tribunal and before the Madhya Pradesh High Court was that the appellant was not in a position to make the pre-deposit due to financial constraints. After examining the provisions of section 129E of the Customs Act, the Madhya Pradesh High Court observed that section 129E does not empower the Tribunal or the Commissioner (Appeals) to waive the pre-deposit or to reduce the pre-deposit , this Court is also not inclined, keeping in view the aforesaid statutory provisions of law to waive or reduce the pre-deposit and, therefore, no case for interference is made out in the matter. Accordingly, the Writ Petition is dismissed. The appellant has not made the pre-deposit. In view of the aforesaid decisions of the Delhi High Court and the Madhya Pradesh High Court, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit. As the statutory requirement has not been complied with, the appeal would have to be dismissed and is, accordingly, dismissed.
Issues Involved:
1. Non-appearance of the appellant. 2. Requirement of pre-deposit under Section 35F of the Central Excise Act. 3. Judicial precedents on the mandatory nature of pre-deposit for maintaining appeals. Detailed Analysis: 1. Non-appearance of the appellant: The Tribunal noted that the appellant did not appear for the hearings on December 14, 2022, February 08, 2023, and the current date. Despite a communication from the Superintendent of Police on December 12, 2022, seeking adjournment due to the Chartered Accountant's request for more time, the appellant failed to appear or address the defects by the subsequent hearing dates. 2. Requirement of pre-deposit under Section 35F of the Central Excise Act: The Tribunal emphasized the statutory requirement under Section 35F of the Central Excise Act, which mandates a pre-deposit of a certain percentage of the duty demanded or penalty imposed before an appeal can be entertained. Specifically: - 7.5% of the duty or penalty for appeals under Section 35. - 10% of the duty or penalty for appeals under Section 35B. The Tribunal highlighted that post the amendment on August 06, 2014, neither the Tribunal nor the Commissioner (Appeals) has the power to waive this pre-deposit requirement. 3. Judicial precedents on the mandatory nature of pre-deposit for maintaining appeals: The Tribunal referred to several judicial precedents to underscore the mandatory nature of the pre-deposit requirement: - Narayan Chandra Ghosh vs. UCO Bank and Others: The Supreme Court held that statutory conditions for appeal, such as pre-deposit, are mandatory and cannot be waived by the Appellate Tribunal. - Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors: Reiterated the principles from Narayan Chandra Ghosh, emphasizing the mandatory nature of pre-deposit. - Chandra Sekhar Jha: The Supreme Court rejected the appeal due to non-compliance with the pre-deposit requirement, noting the legislative intent to remove the discretionary power to waive pre-deposit. - Dish TV India Limited vs. Union of India & Ors: The Delhi High Court held that courts cannot waive the mandatory pre-deposit required by statute. - M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), New Delhi: The Delhi High Court emphasized the absolute bar on entertaining appeals without the mandatory pre-deposit. - Diamond Entertainment Techno. P. Ltd. v/s Commissioner of CGST, Dehradun: The Delhi High Court upheld the mandatory nature of pre-deposit. - Ankit Mehta v/s Commissioner, CGST Indore: The Madhya Pradesh High Court dismissed the writ petition, reinforcing that neither the Tribunal nor the Commissioner (Appeals) can waive or reduce the pre-deposit requirement. Conclusion: The appellant failed to comply with the mandatory pre-deposit requirement under Section 35F of the Central Excise Act. Given the binding judicial precedents, the Tribunal dismissed the appeal due to non-compliance with the statutory pre-deposit requirement. The decision was pronounced in open court.
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