TMI Blog2019 (12) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... l has to be preferred before CESTAT. It has been dismissed on account of non-compliance of the order passed by the Tribunal. In similar circumstances, this Court while deciding OTA No.4 of 2019 (Rahul Rajvaidhya vs. Customs Central Excise and Service Tax) has passed an order on 30.09.2019 and the same reads as under:- 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). 02.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. 03.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 Tribunal and therefore the question of predeposit in the present case does not arise. 04.This court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at has been stated is that the appellant is not in a position to deposit the amount because of financial constraints. About 4 1/2 months have already lapsed and no steps have been taken by the appellant. It is, therefore, clear that the appellant is not interested in pursuing the appeal as he has not even sought time to make the pre-deposit. We accordingly, dismiss the appeal. Section 129E of the Customs Act, 1962 reads as under: 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 half per cent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129A, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, this Court is of the considered opinion that the judgment is not binding upon this Court and this Court will certainly not pass an order contrary to the 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 also been placed upon the judgment delivered by the Delhi High Court in the case of Narendra Yadav Vs. Joint Commissioner of Customs (Exports) (W.P. (c) No. 195/2019, decided on 11/1/2019) and again the condition of pre-deposit has been waived. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35F cannot possibly be taken away, the Court is of the view that the said power should be used in rare and deserving cases where a clear justification is made out for such interference. Having heard the submissions of Mr. Datta and having perused the adjudication order, the Court is not persuaded to exercise its powers under Article 226 to direct that there should be a complete waiver of the per-deposit as far as the petitioner's appeal before the CESTAT is concerned. 05. There is one more case i.e WP No. 24164/2018 (Kirit Shrimankar Vs. The Commissioner of CGST Central Excise), which has also been dismissed by this court by order dated 27-03-2019. Thus, in short large number of writ petitions have been filed in respect of alleged fraudulent export/over invoicing for claiming undue benefits. The Hon'ble Supreme court in the case of Commissioner of Customs, Mumbai Vs. Tex-age and others reported in 2017(11) SCC 380 has declined to interfere in the matter in respect of finding of fact specially when there was a fraudulent export/over invoicing for claiming undue benefits. The impugned order passed by the Tribunal reads as under :- T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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