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2022 (7) TMI 369 - AT - CustomsMaintainability of appeal - requirement of mandatory pre-deposit contemplated under section 129E of the Customs Act, 1962 - HELD THAT:- an application filed by the appellant seeking waiver of the pre-deposit. The reason stated is that the appellant has a good case on merits in view of the judgment of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. The appellant has further stated that he is not in a position to make the pre-deposit because the appellant is not doing any business; the father of the appellant is ill and the appellant has taken a house on loan for which he has to make regular monthly installments. 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. A Division Bench of Delhi High Court in M/S. VISH WIND INFRASTRUCTURE LLP, M/S. J.N. INVESTMENT & TRADING CO. PVT. LTD. VERSUS ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI [2019 (8) TMI 1809 - DELHI HIGH COURT] 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 Excise Act and section 129E of the Customs Act on 06.08.2014 would be maintainable only if the mandatory pre-deposit was made. In coming to this conclusion, the Division Bench relied upon the judgment of the Delhi High Court in ANJANI TECHNOPLAST LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2015 (10) TMI 2446 - DELHI HIGH COURT] and also observed that in view of the peremptory words ‘shall not’, there is an absolute bar on the Tribunal to entertain any appeal unless the requirement of pre-deposit is satisfied. Thus, it is not possible to grant waiver of the pre-deposit amount. The application is accordingly, rejected.
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