TaxTMI 
TaxTMI 
2022 (3) TMI 1177
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....ent a letter dated 03.12.2021 to the appellant and the learned counsel appearing for the appellant by registered post mentioning therein that the defect relating to pre-deposit should be removed before 24.12.2021, failing which the appeal would be listed before the Bench of the Tribunal on 31.12.2021. 3. The appellant did not make the pre-deposit and so that the matter was listed before the Bench on 31.12.2021. On that date, the learned counsel for the appellant sought adjournment and the matter was directed to be listed on January 27, 2022. On January 27, 2022 the matter was directed to be listed on March 10, 2022 as the learned counsel for the appellant sought time to make certain corrections in the memorandum of appeal and for making the pre-deposit. On March 10, 2022, the learned counsel for the appellant again sought an adjournment to enable him to examine the issue relating to requirement of pre-deposit. The matter was, therefore, directed to be listed on March 21, 2022. 4. The requirement of pre-deposit, as contemplated under section 129E of the Customs Act, has not been complied with by the appellant and it has been stated by the learned counsel appearing for the appe....
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....fore any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. " 7. It would be seen from a bare perusal of section 129E of the Customs Act that after 6.8.2014 neither the Tribunal nor the Commissioner (Appeals) have the power to waive the requirement of pre-deposit, unlike the situation which existed prior to the amendment made in section 129E on 06.08.204 when the Tribunal, if it was of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship, could dispense the said deposit on such conditions as it deemed fit to impose so as to safeguard the interest of the Revenue. 8. 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. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the conditi....
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....s contained in Section 18 of the Act. In that view of the matter, no court, much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the Statute. We have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said Section, the Appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement. 9. The argument of learned counsel for the appellant that as the amount of debt due had not been determined by the Debts Recovery Tribunal, appeal could be entertained by the Appellate Tribunal without insisting on pre-deposit, is equally fallacious. Under the second proviso to sub- section (1) of Section 18 of the Act the amount of fifty per cent, which is required to be deposited by the borrower, is computed either with reference to the debt due from him as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less. Obviously, where the amount of debt is yet to be determined by the Debts Recovery Tribunal, the bor....
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....fixed under the substituted provisions, we do not find any merit in the contention of the appellant. " 11. In this connection, it will also be appropriate to refer to a decision of the Delhi High Court in Dish TV India Limited vs. Union of India & Ors. [W.P. (C) 4960 of 2020 decided on 06.08.2020], wherein the requirement of pre-deposit under section 129E of the Customs Act, came up for consideration. The High Court held that when the Statue itself provided wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and made it mandatory to deposit 7.5% or 10% of duty amount, the Courts cannot waive this requirement of deposit. The observations of the Delhi High Court are as follows: "7. Previously, prior to amendments of the statue, applications for wavier of the pre-deposit were being preferred. Several litigations have travelled up to the Hon'ble Supreme Court upon such applications for waiver of pre-deposit. 10. In view of the aforesaid statutory provisions of the Act, it appears that the statue has now effected wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and has made it mandatory to deposit 7.5% or 10% of the duty amou....
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....g that the amount to be deposited would not exceed 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6" August, 2014. 30. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6" August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter. 31. That no court can direct an authority to act in violation of the law is settled in innumerable authorities, including, inter alia, Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264], A.B.Bhaskara Rao v. C.B.I [(2011) 10 SCC 259], , Manish Goel v. Rohini Goel [(2010) 4 SCC 393], and State of Bihar v. Arvind Kumar [(2012) 12 SCC 395]. 33. In view of the aforesaid facts, reasons and judicial pronouncements, the prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition o....