2022 (1) TMI 1184

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....On April 16, 2021, learned Counsel for the appellant appeared and prayed for four weeks time to make the pre-deposit. The appeal was, therefore, directed to be listed on May 24, 2021. On May 24, 2021 no one appeared on behalf of the appellant and the matter was directed to be listed on July 05, 2021. On July 05, 2021, learned Counsel for the appellant prayed for and was granted four weeks further time to make the pre-deposit and the matter was directed to be listed on August 13, 2021. On August 13, 2021, learned Counsel for the appellant prayed for and was granted four weeks further time to make the pre-deposit and the matter was directed to be listed on September 17, 2021. On September 17, 2021, learned Counsel for the appellant prayed for....

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....he Customs Act deals with deposit of a certain percentage of duty demanded or penalty imposed before filing appeal. It provides that the Tribunal shall not entertain any appeal unless the appellant has deposited 7.5% or 10% of the duty demanded or penalty imposed. The Customs Act does not provide for waiver of this mandatory deposit before filing appeal. 6. The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others [(2011) 4 SCC 548] , examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre-deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. ....

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....second proviso. Thus, there is an absolute bar to entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre- deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity. 8. It is well-settled that when a Statute confers a right of appeal, while granting the right, the Legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory. Bearing ....

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....erring appeal, would be liable to deposit fifty per cent of the debt due from him as claimed by the secured creditors. Therefore, the condition of pre-deposit being mandatory, a complete waiver of deposit by the appellant with the Appellate Tribunal, was beyond the provisions of the Act, as is evident from the second and third provisos to the said Section. At best, the Appellate Tribunal could have, after recording the reasons, reduced the amount of deposit of fifty per cent to an amount not less than twenty-five per cent of the debt referred to in the second proviso. We are convinced that the order of the Appellate Tribunal, entertaining appellant's appeal without insisting on predeposit was clearly unsustainable and, therefore, the de....