Pre deposits (appeal)

[DEEPAK SHARMA]

A individual seek to file appeal before 1st appellate authority..... How they can deposit pre deposit 7.5% of penalty for stay the matter

Please suggest

[V Rajalakshmi]

Mr Deepak Sharma

Kindly ref to sec 107 (6) (b) of CGST, the aggrieved party is required to pay 10% of the disputed tax, and no interest or penalty.

[Shilpi Jain]

This is in the context of Customs I suppose and not GST.

Also now there is no concept of 'stay the matter'.

It is a compulsory payment of pre deposit for appeal

[Padmanathan KV]

Dear querist, just to bring to your attention the recent decision in MOHAMMED AKMAM UDDIN AHMED & ORS. VERSUS COMMISSIONER APPEALS CUSTOMS AND CENTRAL EXCISE & ORS. 2023 (5) TMI 23 - DELHI HIGH COURT wherein the court has allowed petitioner to file appeal without pre-deposit.

The observation of court is as follows:

20.1 The Allahabad High Court in the Ganesh Yadav case (supra) while upholding the constitutional validity of Section 35F of the CE Act has enunciated that the statute may, at times, impose conditions as a requirement of filing an appeal. However, a condition which is unduly onerous will render the right to appeal as a nought. It was held that:

“3. ....As a first principle of law, a right of appeal is a statutory right and it is open to the legislature which confers a remedy of an appeal to condition the appeal subject to compliance with conditions. A fiscal legislation can stipulate a requirement of pre-deposit as a condition precedent to an appeal to be entertained. The restraint on the power of the legislature to do so, is that the condition which is prescribed should not be so onerous so as to restrict or abrogate the right of appeal altogether. A condition which is unduly onerous will render the right of appeal illusory and would hence run the risk of being held to be arbitrary and of being violative of the fundamental right conferred by Article 14 of Constitution.”

[Emphasis is ours]

20.2 Therefore, given the financial position and the wherewithal of the Petitioners, an opportunity needs to be given to them to contest the valuation so imposed by the Respondents, which, otherwise cannot be contested by them. Thus, we consider the case of the Petitioners to be an appropriate case to exercise our discretion in the matter concerning waiver of pre-deposit of penalty.

The matter is fact specific and you will have to approach jurisdictional high court for waiver of pre-deposit.

AI Summary

Delhi High Court allows customs appeal without pre-deposit, highlighting need for reasonable appeal conditions; potential for waiver intervention. An individual sought advice on how to deposit a 7.5% pre-deposit for an appeal before the first appellate authority in a customs case. A respondent clarified that for GST, 10% of the disputed tax must be paid without interest or penalty. Another noted that in customs, pre-deposit is mandatory, and there is no concept of staying the matter. A recent Delhi High Court decision was referenced, where the court allowed an appeal without pre-deposit, emphasizing that conditions for appeals should not be overly burdensome, potentially requiring jurisdictional high court intervention for a waiver.