Appeal dismissed for non-compliance with pre-deposit requirement under Central Excise Act

The appeal was dismissed due to the appellant's failure to comply with the statutory pre-deposit requirement under Section 35F of the Central Excise Act. The Tribunal and Commissioner (Appeals) do not have the authority to waive the pre-deposit post the 2014 amendment. Judicial precedents, including decisions by the Supreme Court and various High Courts, emphasize the mandatory nature of pre-deposit for maintaining an appeal. Consequently, the appeal was dismissed in line with these legal principles.

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Issues Involved:
1. Compliance with the statutory requirement of pre-deposit under Section 35F of the Central Excise Act.
2. Jurisdiction and powers of the Tribunal and Commissioner (Appeals) regarding waiver of pre-deposit.
3. Judicial precedents on the mandatory nature of pre-deposit for maintaining an appeal.

Issue 1: Compliance with the statutory requirement of pre-deposit under Section 35F of the Central Excise Act.

The statutory requirement of making the pre-deposit has not been satisfied. The appeal was filed on October 07, 2022, without making the statutory pre-deposit. Despite multiple opportunities and adjournments, the appellant neither appeared nor complied with the pre-deposit requirement.

Issue 2: Jurisdiction and powers of the Tribunal and Commissioner (Appeals) regarding waiver of pre-deposit.

Section 35F of the Central Excise Act, as amended on August 06, 2014, mandates a pre-deposit of a certain percentage of duty demanded or penalty imposed before filing an appeal. The Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the specified percentage. The Tribunal does not have the power to waive the requirement of pre-deposit post the amendment, unlike the situation prior to August 06, 2014.

Issue 3: Judicial precedents on the mandatory nature of pre-deposit for maintaining an appeal.

The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others emphasized that when a statute confers a right to appeal, conditions can be imposed for exercising such a right. Unless the condition precedent for filing an appeal is fulfilled, the appeal cannot be entertained. The Supreme Court reiterated these principles in Kotak Mahindra Bank Pvt. Limited vs. Ambuj A. Kasiwal & Ors. and Chandra Sekhar Jha vs. Union of India and Another.

The Delhi High Court in Dish TV India Limited vs. Union of India & Ors. and M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication) held that there is an absolute bar on the Tribunal to entertain any appeal unless the mandatory pre-deposit is made. The Madhya Pradesh High Court in Ankit Mehta v/s Commissioner, CGST Indore also upheld the mandatory nature of pre-deposit, dismissing the appeal for non-compliance.

Conclusion:

The appellant has not made the pre-deposit. In view of the aforesaid 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. Thus, for all the reasons stated above, the appeal stands dismissed.

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