TaxTMI 
TaxTMI 
2019 (10) TMI 227
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....toms Act, 1962 and the same has been dismissed 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....
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....e Registry on 27 August, 2018 without complying with the aforesaid provision. A communication 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. A....
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....his section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (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, Hydera....
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....ral Excise reported in 2014 SCC Online Mad 4667. It was again a case under the Central Excise Act, 1944 and, therefore, distinguishable on facts. Even otherwise also the statutory provisions 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, decide....
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.... the matter of Pioneer Corporation v. Union of India[2016 (340) E.L.T.63(Del.)]. Para 10 and 11 of the judgment are relevant which reads as under :- "10. Under section 35F ofthe CE Act as it stood prior to 6th August, 2014, 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 e....
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....out ensuring compliance of the provisions of Section 129-E of the Act. 2. A communication dated 12 September, 2018 was, accordingly, sent to the appellant by Speed Post requiring the appellant to submit proof of mandatory deposit before the Registrar on 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, thereafte....