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TMI Blog2025 (4) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been called out but no one has appeared on behalf of the appellant. The office has reported that the defects have not been removed till date. Out of the three defects, one defect relates to non compliance of the statutory requirement of pre deposit. List on January 27, 2025 by which time the defects may be removed." 4. On 27.01.2025, the following order was passed: "The appeal was filed in the office on 17.05.2024, but three defects including non-compliance of the statutory deposit have been pointed out by the registry. Though, time was repeatedly given to the appellant to remove the defects, but they have not been removed. List on March 10, 2025 by which time the defects may be removed." 5. On 10.03.2025, the following order was passed: "Though on four occasions, the matter was adjourned to enable the appellant to make the remaining pre-deposit of Rs. 25, court fee of Rs. 5 and stamp fee of Rs. 25 but the same has not been done. List on April 07, 2025. The office shall send a fresh notice to the appellant and the learned counsel for the appellant. The notice shall indicate that the appeal would be listed on 07.04.2025. The notice shall also mention that in case the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) 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. 10. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 explicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014. 30. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th 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 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." 15. The same view was taken by the Division Bench of the Delhi High Court in Diamond En ..... X X X X Extracts X X X X X X X X Extracts X X X X
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