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2022 (3) TMI 1177 - AT - CustomsMaintainability of appeal - requirement of deposit of the required percentage of duty demanded before filing the appeal as contemplated under section 129E of the Customs Act, 1962 not complied with - HELD THAT:- 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. The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others [2011 (3) TMI 1478 - SUPREME COURT], 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. 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 Madhya Pradesh High Court in ANKIT MEHTA VERSUS COMMISSIONER, CGST INDORE [2019 (3) TMI 1342 - MADHYA PRADESH] also dismissed the Writ Petition that had been filed against the order of the Tribunal dismissing the appeal for the reason that the required pre-deposit was not made. The contention that was advanced before the Tribunal and before the Madhya Pradesh High Court was that the appellant was not in a position to make the pre-deposit due to financial constraints. The appellant has not made the pre-deposit and has filed an application seeking waiver because of financial constraints and for the reason that the appellant has a good case on merits - As the law relating to pre-deposit has been settled by the Supreme Court and the High Courts, it would also not be possible to accept the prayer made by the learned counsel for the appellant that the application should not be decided at this stage as the matter in the case of a co-noticee, after his plea for waiver of pre-deposit had been rejected by the Tribunal and the High Court had maintained the order of the Tribunal, is pending in Supreme Court. The application filed for waiver of pre-deposit is rejected - As the application has been rejected, the appeal stands dismissed.
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