9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 369 - AT - CustomsMaintainability of appeal - requirement of mandatory pre-deposit contemplated under section 129E of the Customs Act, 1962 - HELD THAT - an application filed by the appellant seeking waiver of the pre-deposit. The reason stated is that the appellant has a good case on merits in view of the judgment of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT . The appellant has further stated that he is not in a position to make the pre-deposit because the appellant is not doing any business; the father of the appellant is ill and the appellant has taken a house on loan for which he has to make regular monthly installments. 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. 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. 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. Thus, it is not possible to grant waiver of the pre-deposit amount. The application is accordingly, rejected.
Issues Involved:
1. Mandatory pre-deposit requirement under section 129E of the Customs Act, 1962. 2. Tribunal's authority to waive the pre-deposit. 3. Financial constraints of the appellant as a ground for waiver. Issue-wise Detailed Analysis: 1. Mandatory Pre-deposit Requirement under Section 129E of the Customs Act, 1962: The appeal was filed on December 27, 2021, without the mandatory pre-deposit as required under section 129E of the Customs Act, 1962. The office communicated to the appellant on March 03, 2022, to make the pre-deposit, failing which the appeal would be listed before the Bench. Despite multiple extensions granted by the Bench, the appellant neither appeared nor made the pre-deposit. 2. Tribunal's Authority to Waive the Pre-deposit: The appellant filed an application seeking waiver of the pre-deposit, citing a good case on merits based on a Supreme Court judgment and personal financial constraints. However, the Tribunal examined section 129E of the Customs Act, which mandates a pre-deposit of a certain percentage of the duty or penalty before filing an appeal and explicitly states that neither the Tribunal nor the Commissioner (Appeals) has the power to waive this requirement post the amendment on 06.08.2014. The Tribunal referenced the Supreme Court's decision in Narayan Chandra Ghosh vs. UCO Bank and Others, which emphasized that statutory conditions for filing an appeal must be fulfilled, and the Tribunal cannot grant a waiver beyond the provisions of the Act. The decision in Kotak Mahindra Bank Pvt. Limited vs. Ambuj A. Kasiwal & Ors reiterated these principles. In Chandra Sekhar Jha vs Union of India and Another, the Supreme Court noted that the new regime under section 129E reduced the pre-deposit requirement but removed the discretionary power to waive it. The Delhi High Court in Dish TV India Limited vs. Union of India & Ors. and M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), New Delhi, also held that courts cannot waive the statutory requirement of pre-deposit. 3. Financial Constraints of the Appellant as a Ground for Waiver: The appellant argued financial incapacity to make the pre-deposit due to not conducting any business, the illness of the appellant's father, and loan obligations. However, the Tribunal, referencing the Madhya Pradesh High Court's decision in Ankit Mehta v/s Commissioner, CGST Indore, held that financial constraints do not empower the Tribunal to waive or reduce the mandatory pre-deposit under section 129E. Conclusion: In light of the statutory provisions and judicial precedents, the Tribunal concluded that it lacked the authority to waive the pre-deposit requirement. Consequently, the application for waiver was rejected, and the appeal was dismissed due to the appellant's failure to comply with the pre-deposit mandate. Judgment: The application for waiver of the pre-deposit was rejected, and the appeal was dismissed for non-compliance with the mandatory pre-deposit requirement under section 129E of the Customs Act, 1962.
|
