2022 (8) TMI 1257 - AT - Customs

Appeal Dismissed for Non-Compliance with Pre-Deposit Rule

Shri Lokesh Jhalani, Partner of M/s. Sai International Versus Commissioner of Customs, Office of the Commissioner of Customs (Preventive), Jodhpur

The appeal was dismissed due to the appellant's failure to comply with the mandatory pre-deposit requirement under Section 129E of the Customs Act. ... Maintainability of appeal - fulfilment with the requirement of pre-deposit or not - applicability of time limitation - Section 129E of the Customs Act, 1962 - HELD THAT:- It would be seen from a bare perusal of section 129E of the Customs Act that after August 06, 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 August 06, 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. 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 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. In coming to this conclusion, the Division Bench relied upon the judgment of the Delhi High Court in ANJANI TECHNOPLAST LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2015 (10) TMI 2446 - DELHI HIGH COURT] and also observed that in view of the peremptory words ‘shall not’, there is an absolute bar on the Tribunal to entertain any appeal unless the requirement of pre-deposit is satisfied. The appellant has not made the pre-deposit and even though time was given to the appellant to make the pre-deposit, the pre-deposit has not been made - In view of the decisions of the Supreme Court, the Delhi High Court and the Madhya Pradesh High Court, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit. As the statutory requirement has not been complied with, the appeal is dismissed. Issues Involved:1. Non-compliance with pre-deposit requirements.2. Applicability and interpretation of Section 129E of the Customs Act, 1962.3. Judicial precedents on mandatory pre-deposit conditions.Issue-wise Detailed Analysis:1. Non-compliance with pre-deposit requirements:The appeal was filed on January 07, 2022, with five defects, including the crucial issue of pre-deposit. Despite notices served on March 29, 2022, and March 30, 2022, neither the appellant nor their counsel appeared, nor were the defects rectified. The Tribunal granted time until June 02, 2022, to rectify the defects. On June 02, 2022, the appellant still did not make the pre-deposit, leading to an adjournment to July 26, 2022, with a warning of an appropriate order if non-compliance persisted. Despite these opportunities, the appellant failed to make the pre-deposit, leading to the conclusion that the appeal could not be entertained due to non-compliance with statutory requirements.2. Applicability and interpretation of Section 129E of the Customs Act, 1962:Section 129E mandates that appellants must deposit a specified percentage of the duty or penalty before filing an appeal. Post-August 06, 2014, neither the Tribunal nor the Commissioner (Appeals) has the authority to waive this requirement. This amendment removed the Tribunal's previous discretion to waive deposits in cases of undue hardship, thereby making the pre-deposit a mandatory condition for appeal.3. Judicial precedents on mandatory pre-deposit conditions:- Narayan Chandra Ghosh vs. UCO Bank and Others: The Supreme Court emphasized that statutory conditions for appeals, including pre-deposit requirements, must be fulfilled for an appeal to be entertained. The Appellate Tribunal erred by entertaining appeals without ensuring compliance with these conditions.- Kotak Mahindra Bank Pvt. Limited vs. Ambuj A. Kasiwal & Ors: Reiterated the principles from Narayan Chandra Ghosh, reinforcing the mandatory nature of pre-deposit requirements.- Chandra Sekhar Jha: The Supreme Court upheld the mandatory pre-deposit requirement under the amended Section 129E, rejecting the appellant's argument for applying pre-2014 provisions.- Dish TV India Limited vs. Union of India & Ors: The Delhi High Court held that courts cannot waive the statutory pre-deposit requirements, as the law itself provides significant relief by reducing the deposit percentage.- M/s Vish Wind Infrastructure LLP vs. Additional Director General (Adjudication): The Delhi High Court emphasized the absolute bar on entertaining appeals without the mandatory pre-deposit, highlighting the peremptory language of Section 35F of the Central Excise Act, analogous to Section 129E of the Customs Act.- Diamond Entertainment Techno. P. Ltd. vs. Commissioner of CGST: Reinforced the mandatory nature of pre-deposit for appeals.- Ankit Mehta vs. Commissioner, CGST Indore: The Madhya Pradesh High Court dismissed a writ petition against the Tribunal's order for non-compliance with pre-deposit requirements, despite financial constraints.Conclusion:The appellant's failure to comply with the mandatory pre-deposit requirement under Section 129E of the Customs Act, despite multiple opportunities and clear judicial precedents, led to the dismissal of the appeal. The statutory provisions and judicial interpretations unequivocally mandate the pre-deposit as a condition precedent for entertaining any appeal, leaving no room for waiver or reduction by the Tribunal or the courts.