TaxTMI 
TaxTMI 
2022 (6) TMI 1228
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.... reproduced below: The present appeal is arising out of the order dated 08-03- 2019 passed by the Customs and Service Tax Excise Appellate Tribunal in Appeal No. 5281/2018 (Rahul Rajvaidhya Vs. Customs Central Excise). 2. The facts of the case reveal that the present appellant has preferred an appeal u/s 129-A of the Customs 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. 3. 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 Tribuna....
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....tion to make a pre-deposit due to financial constraint. The order passed by the Tribunal reads as under : Section 129E of the Customs Act, 1962 provides that the Tribunal shall not entertain any appeal unless the appellant has deposited 7.5% of the duty. This appeal was filed in the 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 th....
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....imposed or both, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this 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 f....
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....e statutory provisions. Reliance has also been placed upon the judgment delivered by the Madras High Court in the case of M/s. Venus Rubbers Vs. The Addl. Commissioner of Central 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 als....
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....e the request and therefore considering the question of financial difficulty dismissed the writ petition. 9. Similar is the view taken in 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 of the 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....
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....l under section 129 A of the Customs Act, 1962 (hereinafter referred to as the Act on 27 August, 2018 without 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 pl....