Tribunal: Pre-deposit rule applies to appeals post 6 Aug 2014. Compliance deadline set.

The Tribunal held that the amended Section 129E of the Customs Act, 1962, requiring a pre-deposit before filing an appeal, applies to appeals filed after the amendment date of 6 August 2014, regardless of when the show cause notice was issued. The appellant's failure to comply with the pre-deposit requirement led to the rejection of their waiver application. They were given a two-week deadline to fulfill the pre-deposit, with dismissal of the appeal as the consequence of non-compliance. Compliance check was set for 15 March 2019.

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Issues Involved:
1. Applicability of the amended Section 129E of the Customs Act, 1962.
2. Requirement of pre-deposit for filing an appeal.
3. Interpretation of the Finance Act, 2014 regarding pending appeals.

Issue-wise Detailed Analysis:

1. Applicability of the amended Section 129E of the Customs Act, 1962:
The core issue revolves around whether the amended Section 129E of the Customs Act, 1962, which mandates a pre-deposit of a certain percentage of the duty demanded or penalty imposed before filing an appeal, applies to appeals filed after its amendment on 6 August 2014. The appellant argued that since the show cause notice was issued before the amendment (on 6 February 2013), the unamended provisions should apply. However, the Tribunal held that the amended Section 129E applies to all appeals filed on or after 6 August 2014, irrespective of when the show cause notice was issued.

2. Requirement of pre-deposit for filing an appeal:
The appellant did not comply with the pre-deposit requirement under the amended Section 129E. The Tribunal emphasized that a plain reading of the amended Section 129E requires an appellant to deposit 7.5% of the duty or penalty in dispute before the Tribunal can entertain the appeal. The Tribunal cited the second proviso of Section 129E, which exempts only those appeals and stay applications pending before any appellate authority prior to the commencement of the Finance Act, 2014, from the pre-deposit requirement.

3. Interpretation of the Finance Act, 2014 regarding pending appeals:
The Tribunal referred to the Allahabad High Court’s judgment in Ganesh Yadav vs. Union of India, which upheld the constitutional validity of the amended Section 35F of the Central Excise Act, 1944 (para materia to Section 129E of the Customs Act). The High Court ruled that the amended provisions apply to all appeals filed after the amendment date. The Delhi High Court in Pioneer Corporation vs. Union of India also supported this view, emphasizing that the amended provisions govern appeals filed post-amendment, regardless of the date of the show cause notice. The Tribunal rejected the appellant's reliance on the Madras High Court’s decision in Fifth Avenue Sourcing Pvt. Ltd., noting that it had been reversed by a Division Bench.

Conclusion:
The Tribunal concluded that the appellant must comply with the pre-deposit requirement under the amended Section 129E. The appellant's application for waiver of pre-deposit was rejected. However, the Tribunal granted the appellant two weeks to fulfill the pre-deposit requirement, failing which the appeal would be dismissed. The appeal was scheduled for a compliance check on 15 March 2019.

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