TaxTMI 
TaxTMI 
2019 (10) TMI 227
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed vide order dated 08-03-2019 on account of non-compliance of the mandatory required as contained u/s129 (e) of the Customs Act, 1962. 03. Learned counsel for the appellant has placed reliance upon an order dated 12-11-2018 passed in Appeal No. C/52173-52177 and other connected matters and his contention is that the similar appeal has been allowed in the matter by the Tribunal and therefore the question of pre-deposit in the present case does not arise. 04. This court has carefully gone through the aforesaid order dated 12-11-2018 brought on record and the same reveals that it was an appeal filed by the departmental officer holding the post of Commissioner of Customs. This issue involved in the aforesaid appeal was whether the benefits ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmunication dated 14 September, 2018 was sent by the Tribunal to the appellant for providing evidence of mandatory deposit and the matter was directed to be listed on 5 October, 2018. The appellant by a letter dated 5 October, 2018 intimated the Tribunal that the appellant is not in a position to make the pre-deposit due to financial constraint. When the matter was listed before the Tribunal on 26 November, 2018, it was adjourned to 24 December, 2018 on a request made by the appellant. Today, when the matter is listed, all that has been stated is that the appellant is not in a position to deposit the amount because of financial constraints. About 4 1/2 months have already lapsed and no steps have been taken by the appellant. It is, ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(No. 2) Act, 2014.'' The aforesaid statutory provision of law makes it very clear that it is mandatory for an appellant to deposit seven and a half percent of the duty demanded or penalty imposed or both. The petitioner has not deposited a single rupee and in those circumstances, keeping in view the provision of Sec. 129E, the appeal itself has been dismissed. Learned counsel for the petitioner has placed reliance upon the judgment delivered by the Andhra Pradesh High Court in the case of Indian School of Business, Hyderabad Vs. The Commissioner of Customs & Central Excise, Hyderabad-IV reported in 2014 SCC Online AP 160. The aforesaid case was a case under the Central Excise Act, 1944 and u/S. 35F, the Commissioner appeals and the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons does not permit for waiver of predeposit. Reliance has also been placed upon the judgment delivered by the Allahabad High Court in the case of Shukla Brothers Vs. Customs, Excise & Service Tax Appellate Tribunal reported in 2015 (1) ADJ 48 = MANU/UP/2822/2014. Again it was a case under the Central Excise Act, 1944 and therefore, distinguishable on facts. Lastly reliance has also been placed upon the judgment delivered by the Delhi High Court in the case of Narendra Yadav Vs. Joint Commissioner of Customs (Exports) (W.P. (c) No. 195/2019, decided on 11/1/2019) and again the condition of pre-deposit has been waived. This Court after careful consideration of the aforesaid judgments is of the opinion that Section 129E does not empower t....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., a discretion was available to the CESTAT to consider the financial hardship and accordingly determine the per-deposit amount. That discretion has been consciously sought to be curtailed and thus an amendment was made to Section 35F of CE Act requiring making of a perdeposit of 7.5% in all cases subject to an upper cap of Rs. 10 crores. A direction, therefore, to the CESTAT that it should waive the per-deposit would be contrary to the express legislative intent expressed in the amended Section 35F with effect from 6th August, 2014. 11. While, the jurisdiction of the High Court under Article 226 of the Constitution to grant relief notwithstanding the amended Section 35F cannot possibly be taken away, the Court is of the view that the sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4 October, 2018. The records indicate that on 4 October, 2018 the appellant submitted a letter for dispensing of pre-deposit stating therein the appellant is a Custom House Agent only and not the claimant of drawback and, therefore, the condition of pre-deposit would be very onerous and beyond the reach of the appellant. As the amount was not deposited, the matter was directed to be placed before the Bench for further directions. A communication dated 12 October, 2018 was, thereafter sent to the appellant by speed post on 15th October, 2018 requiring the appellant to submit proof of deposit by 26th October, 2018, on which date the appeal was also directed to be listed before the Bench. The matter was adjourned on 20 December, 2018. However,....