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TMI Blog2022 (8) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... l 06, 2022 has been sent by the appellant stating that in view of the interim moratorium granted by the National Company of Law Tribunal Indore Bench, Ahmedabad the requirement of pre-deposit should be waived. However, when the matter has been called out, no one has appeared on behalf of the appellant. 3. Learned Authorized representative appearing for the Department has submitted that there is no provision for waiver of the requirement of pre-deposit and therefore, the appeal should be dismissed. 4. In the interest of justice, we grant one more opportunity to the appellant to either make submissions on the issue raised regarding pre-deposit or deposit the amount. List on May 31, 2022." 4. A fresh notice dated June 14, 2022 was thereafter sent to the Appellant to make the pre-deposit and the Appellant was also informed that the matter would be listed before the Tribunal on August 10, 2022. The Office has reported that the said notice has been served both upon the Appellant and the learned Counsel appearing for the Appellant by Speed Post on June 17, 2022. 5. Today, when the matter has been called out, neither the Appellant nor the learned Counsel for the Appellant has appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others [(2011) 4 SCC 548], 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. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act. The relevant portion of the judgment of the Supreme Court is reproduced below: "7. Section 18(1) of the Act confers a statutory right on a person aggrieved by any order made by the by the Debts Recovery Tribunal under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal could be entertained by the Appellate Tribunal without insisting on pre-deposit, is equally fallacious. Under the second proviso to sub- section (1) of Section 18 of the Act the amount of fifty per cent, which is required to be deposited by the borrower, is computed either with reference to the debt due from him as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less. Obviously, where the amount of debt is yet to be determined by the Debts Recovery Tribunal, the borrower, while preferring appeal, would be liable to deposit fifty per cent of the debt due from him as claimed by the secured creditors. Therefore, the condition of pre-deposit being mandatory, a complete waiver of deposit by the appellant with the Appellate Tribunal, was beyond the provisions of the Act, as is evident from the second and third provisos to the said Section. At best, the Appellate Tribunal could have, after recording the reasons, reduced the amount of deposit of fifty per cent to an amount not less than twenty-five per cent of the debt referred to in the second proviso. We are convinced that the order of the Appellate Tribunal, entertaining appellant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deposit. The observations of the Delhi High Court are as follows: "7. Previously, prior to amendments of the statue, applications for wavier of the pre-deposit were being preferred. Several litigations have travelled up to the Hon'ble Supreme Court upon such applications for waiver of pre-deposit. 10. In view of the aforesaid statutory provisions of the Act, it appears that the statue has now effected wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and has made it mandatory to deposit 7.5% or 10% of the duty amount, as the case may be. It ought to be kept in mind that the relief is granted by the law itself. Courts cannot be more charitable than the law. When the provisions of the law are explicitly clear or where the provisions of law are absolutely unambiguous, such type of pre-deposits cannot be waived by the courts. 13. In view of the amendment in the Act, especially Section 129E thereof, there is no question whatsoever of the waiver of predeposit. As stated hereinabove, the statue 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 deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled in innumerable authorities, including, inter alia, Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264], A.B.Bhaskara Rao v. C.B.I [(2011) 10 SCC 259], , Manish Goel v. Rohini Goel [(2010) 4 SCC 393], and State of Bihar v. Arvind Kumar [(2012) 12 SCC 395]. 33. In view of the aforesaid facts, reasons and judicial pronouncements, the prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted. There is, therefore no substance in these writ petitions which are, consequently, dismissed." 14. The same view was taken by the Division Bench of the Delhi High Court in Diamond Entertainment Techno. P. Ltd. v/s Commissioner of CGST, Dehradun [2019 (368) E.L.T. 579 (Del.)]. 15. The Madhya Pradesh High Court in Ankit Mehta v/s Commissioner, CGST Indore [W.P. No. 4557/2019] also dismissed the Writ Petition that had been filed against the order of the Tribunal dismissing the appeal for the reason that the required pre-deposit was not made. The contention that was advanced before the Tribunal and before the Madhya Pradesh High Court was that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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