2022 (8) TMI 1258 - AT - Customs

Appeal dismissed for failure to make mandatory pre-deposit under Customs Act.

M/s. Sai Kripa Gems, Versus Commissioner of Customs, Office of the Commissioner of Customs (Preventive), Jodhpur

The appeal was dismissed due to the appellant's failure to make the mandatory pre-deposit as required by Section 129E of the Customs Act, 1962. Despite ... 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. Pre-deposit requirement for filing an appeal.2. Non-appearance of the appellant and removal of defects.3. Interpretation and application of Section 129E of the Customs Act, 1962.4. Judicial precedents on mandatory pre-deposit for appeals.Detailed Analysis:1. Pre-deposit Requirement for Filing an Appeal:The appeal was filed on January 07, 2022, with five defects, including the crucial defect related to the pre-deposit. The Tribunal emphasized that Section 129E mandates a pre-deposit of a certain percentage of the duty demanded or penalty imposed before an appeal can be entertained. This requirement is non-negotiable and must be fulfilled for the appeal to proceed.2. Non-appearance of the Appellant and Removal of Defects:Despite notices served on the appellant and their counsel, the appellant neither appeared nor made the required pre-deposit. The Tribunal granted additional time until June 02, 2022, to rectify the defects, but the appellant failed to comply. Consequently, the Tribunal adjourned the matter to July 26, 2022, with a clear warning that failure to make the pre-deposit would result in an appropriate order being passed.3. Interpretation and Application of Section 129E of the Customs Act, 1962:Section 129E stipulates that the Tribunal or Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited a specified percentage of the duty or penalty. The Tribunal highlighted that post-August 06, 2014, there is no discretionary power to waive this pre-deposit requirement, unlike the previous regime where undue hardship could justify a waiver.4. Judicial Precedents on Mandatory Pre-deposit for Appeals:The Tribunal referred to several judicial precedents to underscore the mandatory nature of the pre-deposit requirement:- Narayan Chandra Ghosh vs. UCO Bank and Others (2011) 4 SCC 548: The Supreme Court held that statutory conditions for appeals, such as pre-deposit requirements, must be strictly adhered to, and the appellate bodies have no authority to waive these conditions.- Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors (2021): Reiterated the principles laid down in Narayan Chandra Ghosh, affirming the mandatory nature of pre-deposit.- Chandra Sekhar Jha: The Supreme Court noted the shift from the previous regime, emphasizing that the new provisions reduce the pre-deposit amount but eliminate the discretion to waive it.- Dish TV India Limited vs. Union of India & Ors (2020): The Delhi High Court held that courts cannot waive the statutory pre-deposit requirements, as the law itself provides significant relief by reducing the pre-deposit amount.- M/s Vish Wind Infrastructure LLP vs. Additional Director General (Adjudication) (2019): The Delhi High Court confirmed that appeals filed post-amendment must comply with the mandatory pre-deposit requirement.- Diamond Entertainment Techno. P. Ltd. vs. Commissioner of CGST (2019): Affirmed the mandatory nature of pre-deposit for appeals.- Ankit Mehta vs. Commissioner, CGST Indore (2019): The Madhya Pradesh High Court dismissed a writ petition where the appellant failed to make the pre-deposit, reinforcing that neither the Tribunal nor the courts can waive this requirement.Conclusion:The Tribunal concluded that the appellant's failure to make the mandatory pre-deposit, despite multiple opportunities and clear statutory requirements, necessitated the dismissal of the appeal. The appeal was dismissed due to non-compliance with the pre-deposit requirement under Section 129E of the Customs Act, 1962.