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TMI Blog2022 (6) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... HON'BLE SHRI JUSTICE VIVEK RUSIA AND HON'BLE SHRI JUSTICE ANIL VERMA PETITIONER: SHRI MADHUSUDAN DWIVEDI, ADVOCATE ORDER At the very outset Shri Madhusudan Dwivedi, learned counsel for the appellant has fairly placed the order dated 30.09.2019 passed in O.T.A No.04/2019 whereby this Court has declined to entertain the O.T.A and upheld the order passed by the Appellate Tribunal. He prays for disposing the present appeal in terms of the said order. The order dated 30.09.2019 passed in OTA no.04/2019 is reproduced below: The present appeal is arising out of the order dated 08-03- 2019 passed by the Customs and Service Tax Excise Appellate Tribunal in Appeal No. 5281/2018 (Rahul Rajvaidhya Vs. Customs Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the order dated 10/1/2019 passed by the Customs Excise Service Tax Appellate Tribunal, New Delhi in Case No. A.No.C/50115/2019-CV (DB). The contention of the petitioner is that the petitioner has filed an appeal against the order dated 24/5/2018 passed by the Office of the Commissioner, CGST Central Excise, before the Customs Excise Service Tax Appellate Tribunal and the appeal of the petitioner has been dismissed on account of predeposit clause. The contention of the petitioner is that the petitioner is not in a position to make a pre-deposit due to financial constraint. The order passed by the Tribunal reads as under : Section 129E of the Customs Act, 1962 provides that the Tribunal shall not entertain any appeal unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129A, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 129A, unless the appellant has deposited ten per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shable on facts. Reliance has also been placed upon the judgment delivered by the Delhi High Court in the case of Shubh Impex Vs. Union of India reported in 2018 SCC Online Del 8793. It was certainly a case under the Customs Act, 1962 and the Division Bench of Delhi High Court has reduced the pre-deposit amount. Once there is no power conferred upon the appellate Tribunal, nor upon the High Court, this Court is of the considered opinion that the judgment is not binding upon this Court and this Court will certainly not pass an order contrary to the statutory provisions. Reliance has also been placed upon the judgment delivered by the Madras High Court in the case of M/s. Venus Rubbers Vs. The Addl. Commissioner of Central Excise report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aphs- 8 and 9 of the aforesaid judgment reads as under :- 8. In the matter of Suvidha Signs Studios Pvt. Ltd. v. Union of India[2016 (336) E.L.T. 274(Del.)] the petitioner therein failed to comply with the statutory mandatory requirement of depositing the 7.5% of the demand of duty and penalty and therefore, the appeal of the petitioner therein was dismissed. The Delhi High Court after appreciating the fact that petitioner is in great financial difficulty and needs some more time to pay the pre-deposit amount has held that the Court is unable to accede the request and therefore considering the question of financial difficulty dismissed the writ petition. 9. Similar is the view taken in the matter of Pioneer Corporation v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 27-03- 2019. Thus, in short large number of writ petitions have been filed in respect of alleged fraudulent export/over invoicing for claiming undue benefits. The Hon'ble Supreme court in the case of Commissioner of Customs, Mumbai Vs. Tex-age and others reported in 2017(11) SCC 380 has declined to interfere in the matter in respect of finding of fact specially when there was a fraudulent export/over invoicing for claiming undue benefits. The impugned order passed by the Tribunal reads as under :- This appeal has been filed before the Tribunal under section 129 A of the Customs Act, 1962 (hereinafter referred to as the Act on 27 August, 2018 without ensuring compliance of the provisions of Section 129-E of the Act. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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