TaxTMI 
TaxTMI 
2022 (9) TMI 593
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....n behalf of the appellant. 4. It transpires that the appeal was filed before the Commissioner (Appeals) to assail the common order dated March 22, 2022 dismissing the appeal and 18 other appeals for the reason that the mandatory amount towards pre-deposit was not deposited despite repeated opportunities having been granted to the appellant. In the present appeal no reason has been given as to why the amount was not required to be deposited, nor any application has been filed in the appeal seeking time to make the pre-deposit. The statutory requirement of making the pre-deposit as contemplated under section 129E of the Customs Act has not been satisfied. 5. It would be appropriate to reproduce section 129E of the Customs Act as amended on 06.08.2014, as it is the requirement to this section that has not been complied with by the appellant. Section 129 E of the Customs Act is as follow: "SECTION 129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- - (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a hal....
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.... appeal cannot be entertained. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act. The relevant portion of the judgment of the Supreme Court is reproduced below: "7. Section 18(1) of the Act confers a statutory right on a person aggrieved by any order made by the by the Debts Recovery Tribunal under Section 17 of the Act to prefer an appeal to the Appellate Tribunal. However, the right conferred under Section 18(1) is subject to the condition laid down in the second proviso thereto. The second proviso postulates that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less. However, under the third proviso to the sub section, the Appellate Tribunal has the power to reduce the amount, for the reasons....
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....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 decision of the High Court in setting aside the same cannot be flawed." (emphasis supplied) 8. The principles laid down in the aforesaid decision of the Supreme Court in Narayan Chandra Ghosh were reiterated by the Supreme Court in Kotak Mahindra Bank Pvt. Limited vs. Ambuj A.Kasiwal & Ors [Civil Appeal No. 539 of 2021 decided on 16.02.2021]. 9. In Chandra Sekhar Jha, the Supreme Court noted that the Tribunal had rejected the appeal filed under section 129A of the Customs Act for the reason that ....
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..... Courts cannot be more charitable than the law. When the provisions of the law are explicitly clear or where the provisions of law are absolutely unambiguous, such type of pre-deposits cannot be waived by the courts. 13. In view of the amendment in the Act, especially Section 129E thereof, there is no question whatsoever of the waiver of pre-deposit. As stated hereinabove, the statue itself has waived 90% or 92.5% of the duty amount, as the case may be, assessed by the authorities under the Customs Act, 1962. The petitioner-assessee has to deposit only 7.5% or 10% (as the case may be) of the duty assessed. Thus, there is no question of further waiver of the amount which is required to be deposited under Section 129E of the Customs Act, 1962." (emphasis supplied) 11. A Division Bench of Delhi High Court in M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), New Delhi [Writ Petition (C)2178/2019 decided on August 28,2019] examined the provisions of section 35F of the Central Excise Act, 1944 which are pari materia to section 129E of the Customs Act and held that every appeal filed before the Tribunal after the amendment made in section 35F of the Exc....