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TMI Blog2020 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... 29A of the Customs Act, 1962 are pending before CESTAT, we are not at all inclined to observe anything on the merits of the case. There are no reason to entertain this writ petition - petition dismissed. - W.P.(C) 4960/2020, CM No.17905 to 17907 of 2020 - - - Dated:- 6-8-2020 - Hon'ble The Chief Justice And Hon'ble Mr. Justice Prateek Jalan For the Petitioner : Mr.A.R. Madhav Rao, Mr.Tushar Joshi, Mr. Vinayak Kohli, Advocates For the Respondents : Mr.Abhay Prakash Sahay, CGSC with Ms.Indira Goswami, Ms. Mannu Singh, Advs. and Mr.Syed Hussain Adil Taqvi, GP for UOI JUDGMENT JUSTICE D.N. PATEL, Chief Justice (Oral) 1. Proceedings of the matter have been conducted through video conferencing. 2. This writ petition has been preferred with the following prayers: 1) Issue a writ and/or order and/or a direction including a writ in the nature of Mandamus directing the Respondent No.2 to entertain the appeals filed by the Petitioner by dispensing with the Petitioner requiring to deposit a further amount of INR 3,23,53,823/- being the balance of 7.5% of the assessed duty under Section 129 A of the Customs Act, 1962, in regard to the appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition to the CESTAT entertaining an appeal. For an appeal against the order passed by an officer of the rank of the Commissioner of Customs and below, the deposit amount has been fixed at 7.5% and for an appeal against the order of the Commissioner (Appeals), it is 10%. The first proviso to Section 129E states that the pre-deposit made thereunder would not exceed ₹ 10 crores. The second proviso to Section 129E of the Act clarifies that the said provision would not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. 9. For ready reference, Section 129E of the Customs Act, 1962 is reproduced hereunder:- Section 129E. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- (i) under sub-section (1) of section 128 unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Principal Commissioner of Customs or Commissioner of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court noted that the amended Section 35F of the Act, and Section 129E of the Customs Act, 1962, had come in for incisive examination, by the High Court of Allahabad, speaking through Dr. D.Y. Chandrachud, Chief Justice, (as his Lordship then was), in Ganesh Yadav v U.O.I., 2015 (320) ELT 711 (All), in respect of which para 9 of the judgment of this Court observes as under: 9. Dealing with the specific question as to whether the amended Section 35F of the CE Act would apply to the case of the Assessee, the Allahabad High Court held that the words in the amended Section 35F indicated that on and after the date of its enforcement an Assessee in appeal was required to deposit the stipulated percentage of duty and if it failed to do so, the CESTAT shall not entertain the appeal. The amended Section 35F would, therefore, apply to all appeals filed on and from the date of the enforcement of the amended Section 35F of the CE Act . (Emphasis supplied) 7. Taking stock of similar pronouncements in other cases, this Court proceeded to hold, on the question of applicability of the amended provisions of Section 35F of the Central Excise Act, 1944 or Section 129E of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India (supra) in the context of the identically worded Section 35F of the CE Act and holds that the amended Section 129E of the Act will apply to all appeals filed under Section 130 of the Act on or after 6th August, 2014. The challenge to the above said order of this Court was rejected by the Hon ble Apex Court vide order dated 02.12.2019 passed in SLP(C) No.27771/2019. 13. In view of the amendment in the Act, especially Section 129E thereof, there is no question whatsoever of the waiver of pre-deposit. As stated hereinabove, the statute itself has waived 90% or 92.5% of the duty amount, as the case may be, assessed by the authorities under the Customs Act, 1962. The petitioner-assessee has to deposit only 7.5% or 10% (as the case may be) of the duty assessed. Thus, there is no question of further waiver of the amount which is required to be deposited under Section 129E of the Customs Act, 1962. 14. This petitioner has already preferred two separate appeals against two different Orders-in-Original dated 28.02.2020 (Annexure-P1) and 27.04.2020 (Annexure-P2). These appeals have been preferred under Section 129A of the Customs Act, 1962 before CESTAT, Delhi and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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