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TMI Blog2022 (12) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act. 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. As the law relating to pre-deposit has been settled by the Supreme Court and the High Courts, the appeal would have to be dismissed for non-compliance of the statutory mandatory requirement - appeal dismissed. - Defect Diary No. 50121 of 2022 - DEFECT MISCELLANEOUS ORDER NO._261/2022 - Dated:- 1-12-2022 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Bipin Garg Ms. Kainaat, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision or order appealed against : PROVIDED that the amount required to be deposited under this section shall not exceed rupees ten crores: PROVIDED FURTHER that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. 4. 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. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions hedged in the said proviso cannot be said to be onerous. pre-deposit under sub- section (1) of Section 18 of the Thus, we hold that the requirement of Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. In that view of the matter, no court, much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the Statute. We have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said Section, the Appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement. 9 . The argument of learned counsel for the appellant that as the amount of debt due had not been determined by the Debts Recovery Tribunal, 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to avail the benefit of the discretionary power available under the proviso to the substituted provisions under section 129E. When the appellant is not being called upon to pay the full amount but is only asked to pay the amount which is fixed under the substituted provisions, we do not find any merit in the contention of the appellant. 8. In this connection, it will also be appropriate to refer to a decision of the Delhi High Court in Dish TV India Limited vs. Union of India Ors. [W.P. (C) 4960 of 2020 decided on 06.08.2020], wherein the requirement of pre-deposit under section 129E of the Customs Act, came up for consideration. The High Court held that when the Statue itself provided wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and made it mandatory to deposit 7.5% or 10% of duty amount, the Courts cannot waive this requirement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below. 29. The two provisos in section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6 August, 2014. 30. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6 August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter. 31. That no court can direct an authority to act in violation of the law is settled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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