TaxTMI 
TaxTMI 
2022 (9) TMI 226
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....aken up by the Tribunal on March 24, 2022, the following order was passed: "None appeared for the appellant. Matter is adjourned to 4th May, 2022." 4. On May 25, 2022, the following order was passed: "None appeared on behalf of the appellant despite notice nor have defects been removed. In the interest of justice, matter is adjourned to 13.07.2022." 5. When the matter was taken up on July 13, 2022, the following order was passed: "The appeal was filed in the office on December 31, 2021. It transpires from the order sheets that neither the appellant nor any counsel had appeared, though the office report indicates that the notice sent by the Registry of the Tribunal to the appellant was served upon the appellant on February 21, 2022 and upon the learned counsel for the appellant in the February 19, 2022. The defects have also not been removed. 2. Let a fresh notice by sent to the appellant and the learned counsel appearing for the appellant by speed post mentioning therein that the matter will be listed on August 25, 2022, by which date the defects may be removed. The Department may also make an attempt to serve notice upon the appellant. The....
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.... 9. It would be seen from a bare perusal of section 35F of the Customs Act that after August 06, 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 35F on August 06, 2014 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. 10. 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 condition precedent for filing appeal is fulfilled, the appeal cannot be entertained. T....
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.... 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 borrower, while preferring appeal, would be liable to deposit fifty per cent of the....
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....n of the appellant." 13. 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 amount, as the case may be. It ought to be kept in mind that the relief is granted by....
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....pply 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. 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 of mandatory pre-deposit, cannot be granted. There is, therefore no substance in these writ petitions which are, consequen....