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TMI Blog2022 (9) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... "The appeal was filed in the office on March 25, 2022 with certain defects. It transpires from the order sheet transpires that no one has been appearing on behalf of the appellant, though notice sent by the Registry of the Tribunal was served upon the appellant on March 12, 2022. 2. In the interest of justice we grant one more opportunity to the appellant to remove the defects. Office may send a fresh notice to the appellant by speed post mentioning therein that the matter would be listed before the Tribunal on August 29, 2022. List on 29 August, 2022." 4. The office sent a fresh notice dated July 22, 2022 to the appellant by speed post. This notice was served upon the appellant, as has been reported by the office, on July 27, 2022. The office has also reported that the defects have not been removed. 5. When the case has been called out no one has appeared on behalf of the appellant. 6. The requirement of pre-deposit, as contemplated under section 83 of the Finance Act, 1994 has not been complied with by the appellant. 7. Section 83 of the Finance Act, 1994 provides that the provisions of section 35 F of the Central Excise Act shall apply in relation to service tax as they ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 17 of the Act to prefer an appeal to the Appellate Tribunal. However, the right conferred under Section 18(1) is subject to the condition laid down in the second proviso thereto. The second proviso postulates that no appeal shall be entertained unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, 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's appeal without insisting on predeposit was clearly unsustainable and, therefore, the decision of the High Court in setting aside the same cannot be flawed." (emphasis supplied) 11. The principles laid down in the aforesaid decision of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 itmandatory 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 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." (emphasis supplied) 14. A Division Bench of Delhi High Court in M/s Vish Wind Infrastructure LLP v/s Additional Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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". 15. 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.)]. 16. 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 the appellant was not in a position to make the pre-deposit due to financial constraints. After examining the provisions of section 129E of the Customs Act, the Madhya Pradesh High Court observed as follows:- "The aforesaid statutory provision of law makes it very clear that it is mandatory for an appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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