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2022 (9) TMI 1222 - AT - CustomsMaintainability of appeal - non-compliance with the requirement of pre-deposit - section 129E of the Customs Act - 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 06.08.2014 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. 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. In view of the aforesaid decisions of the Supreme Court and the Delhi High Court, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit. Appeal dismissed.
Issues Involved:
1. Compliance with the requirement of pre-deposit under section 129E of the Customs Act. 2. The power of the Tribunal or Commissioner (Appeals) to waive the pre-deposit requirement. 3. Precedents and judicial interpretations regarding the mandatory nature of pre-deposit. Issue-Wise Detailed Analysis: 1. Compliance with the requirement of pre-deposit under section 129E of the Customs Act: The appellant failed to comply with the pre-deposit requirement as mandated by section 129E of the Customs Act. The provision stipulates that an appeal cannot be entertained unless the appellant deposits a certain percentage of the duty or penalty. Specifically, section 129E mandates a deposit of 7.5% of the duty or penalty for appeals under section 128(1) and 129A(1)(a), and 10% for appeals under section 129A(1)(b). The Tribunal noted that the appellant did not fulfill this pre-condition, leading to the dismissal of the appeal. 2. The power of the Tribunal or Commissioner (Appeals) to waive the pre-deposit requirement: The judgment emphasized that post the amendment on 06.08.2014, neither the Tribunal nor the Commissioner (Appeals) has the authority to waive the pre-deposit requirement. Prior to the amendment, the Tribunal could waive the deposit if it deemed that such a requirement would cause undue hardship. However, this discretionary power was removed by the amendment, making the pre-deposit mandatory and non-negotiable. 3. Precedents and judicial interpretations regarding the mandatory nature of pre-deposit: The Tribunal referred to several judicial precedents to reinforce the mandatory nature of the pre-deposit requirement: - Narayan Chandra Ghosh vs. UCO Bank and Others: The Supreme Court held that conditions imposed by statutes for exercising the right to appeal must be fulfilled. The requirement of pre-deposit was deemed a condition precedent for entertaining an appeal, and the Tribunal could not waive this requirement beyond the statutory provisions. - Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors: The Supreme Court reiterated the principles from Narayan Chandra Ghosh, emphasizing that statutory conditions for appeals must be adhered to strictly. - Chandra Sekhar Jha: The Supreme Court noted the shift from the previous regime, highlighting that while the pre-deposit amount was reduced to 7.5% or 10%, the discretion to waive this requirement was removed. - Dish TV India Limited vs. Union of India & Ors: The Delhi High Court held that courts cannot waive the pre-deposit requirement when the statute itself provides a significant waiver (90% or 92.5%) and mandates a minimal deposit (7.5% or 10%). - M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication): The Delhi High Court underscored that the Tribunal cannot entertain appeals without the mandatory pre-deposit, as the statutory language is clear and unambiguous. - Diamond Entertainment Techno. P. Ltd. v/s Commissioner of CGST, Dehradun: The Delhi High Court reaffirmed the mandatory nature of the pre-deposit requirement. - Ankit Mehta v/s Commissioner, CGST Indore: The Madhya Pradesh High Court dismissed a writ petition challenging the pre-deposit requirement, stating that neither the Tribunal nor the courts have the power to waive or reduce the pre-deposit mandated by section 129E. 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. The Tribunal, guided by established judicial precedents, concluded that it lacked the authority to waive this requirement, thereby upholding the statutory mandate.
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