Waiver of pre-deposit is not tenable on account of financial inability

[CA Bimal Jain]

The CESTAT, New Delhi in the matter of M/S PREM KUMAR OJHA VERSUS COMMISSIONER OF CUSTOMS-JAIPUR I [2022 (7) TMI 369 - CESTAT NEW DELHI] held that, in view of the afore-mentioned decisions by the Hon’ble Supreme Court and High Courts, condonation of pre-deposit is not feasible.

Facts:

The Miscellaneous Application is being filed against the Order-in-Original No. 02/2021 dated February 05, 2021 passed by Commissioner of Customs-Jaipur I (“the Respondent”) wherein the Hon’ble CESTAT (“the Office”) sent repeated communications to M/s Prem Kumar Ojha (“the Appellant”), for personal hearing along with intimation for payment of pre-deposit, failing which the appeal would be dismissed. The Appellant did not turn up on any dates provided by the office, neither deposited the said pre-deposit amount.

However, on record the Appellant had sought waiver of the pre-deposit based on the judgement of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. Further, the Appellant sighted financial inability and personal problems as the reason for non-payment of pre-deposit.

Issue:

Whether wavering of pre-deposit on the grounds of Section 129E of the Customs Act, 1962 (“the Customs Act”) existing prior to August 06, 2014 is feasible?

Held:

The CESTAT, New Delhi in M/S PREM KUMAR OJHA VERSUS COMMISSIONER OF CUSTOMS-JAIPUR I [2022 (7) TMI 369 - CESTAT NEW DELHI] held as under:

• Noted that, on bare perusal of Section 129E of the Customs Act, the appellate bodies don’t have the power to waive the requirement of pre-deposit, unlike in the pre-existing situation prior to August 06, 2014, wherein the Tribunal had the power to waive the deposit of duty, interest and penalty levied, if the same was likely to cause undue hardship to the Appellant.
• Observed that the Supreme Court in CHANDRA SEKHAR JHA VERSUS UNION OF INDIA & ANR. [2022 (3) TMI 606 - SUPREME COURT], rejected the appeal filed under Section 129A of the Customs Act wherein the Appellant contended for the implementation of Section 129E of the Customs Act standing prior to August 06, 2014. The Hon’ble Supreme Court rejected the contention of the Appellant on the following grounds: -

• Sharp departure from the previous regime against which the new provisions has been enacted which gave discretionary power to the appellate body to scale down the pre-deposit amount from 100% to 7.5%.
• The legislative intention was not to allow discretionary power to the appellate body under the proviso, which was accordingly done away with, by substituting the provisions under section 129E and in view of the same, going against the legislative intent would not be feasible.

• Further observed that Hon’ble Delhi 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] 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 the requirement of pre-deposit.
• Relied on the decision of Hon’ble Delhi High Court in M/S. DIAMOND ENTERTAINMENT TECHNOLOGIES PVT. LTD. VERSUS COMMISSIONER CENTRAL GOODS AND SERVICE TAX COMMISSIONERATE DEHRADUN AND ANR. [2019 (9) TMI 1104 - DELHI HIGH COURT] and Hon’ble Madhya Pradesh High Court in ANKIT MEHTA VERSUS COMMISSIONER, CGST INDORE [2019 (3) TMI 1342 - MADHYA PRADESH HIGH COURT] wherein similar views were taken by the respective bench.
• Dismissed the appeal on account of failure to pay the pre-deposit amount.
• Held that, in view of the aforesaid decisions of the Hon’ble Supreme Court and the High Court, it is not justiciable to grant waiver of the pre-deposit amount.

(Author can be reached at [email protected])