2025 (5) TMI 90 - HC - Customs

Seeking review of order - condition of pre-deposit renders the appellate remedy onerous and illusory or not - waiver of pre-deposit under Article 226 of the Constitution of India - HELD THAT - This is not a case where pre-deposit provisions have been challenged as unconstitutional. In any event the validity of such provision or similar provisions is already upheld by several decisions holding the field. The right to appeal is never inherent but only statutory. Therefore if such a right is hedged with some condition it cannot be said that such a right is rendered illusory. While the powers of a constitutional Court under Article 226 of the Constitution of India are expansive the Hon ble Supreme Court has held that such powers should not ordinarily be exercised to sidestep the statutory requirements. In Kotak Mahindra Bank Pvt. Ltd. 2021 (2) TMI 1251 - SUPREME COURT the Hon ble Supreme Court has held that the discretionary jurisdiction under Article 226 should not be exercised to defeat the mandatory requirement of statutory provisions. Thus no case for the exercise of review jurisdiction is made out. The Review Petition is therefore dismissed.

Summary

The Bombay High Court, in a review petition against its order dated 6 December 2024 disposing of Writ Petition No. 476 of 2024, addressed two main contentions by the Petitioners: (1) that the pre-deposit condition renders the appellate remedy "onerous and illusory," and (2) that under Article 226 of the Constitution, the Court can waive the pre-deposit requirement and direct the appellate authority to hear the appeal on merits, relying on Mohammed Akmam Uddin Ahmed & Ors. v. Commissioner of Appeals Customs and Central Excise & Ors. (2023).The Court clarified that the pre-deposit condition was not challenged as unconstitutional and that the statutory right to appeal is not inherent but conditional. It emphasized that the power under Article 226, though expansive, "should not ordinarily be exercised to sidestep the statutory requirements," referencing the Supreme Court's binding precedent in Kotak Mahindra Bank Pvt. Ltd. v. Ambuj A. Kasliwal & Ors. (2021), which held that discretionary jurisdiction under Article 226 should not defeat mandatory statutory provisions.The Court noted that Mohammed Akmam Uddin Ahmed & Ors. did not consider the Kotak Mahindra Bank precedent and reaffirmed reliance on the coordinate bench decision in Manjit Singh v. Union of India (2023). Finding no sufficient reason to waive the pre-deposit requirement or exercise review jurisdiction, the Court dismissed the review petition without costs.