TMI Blog2022 (3) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It will also be appropriate to refer to a decision of the Delhi High Court in DISH TV INDIA LIMITED VERSUS UNION OF INDIA AND ORS. [ 2020 (8) TMI 183 - DELHI HIGH COURT ], wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that requirement of pre-deposit may be waived. 3. Shri Rakesh Kumar, learned Authorized Representative appearing for the Department has, however, contended that section 129E of the Customs Act does not permit waiver of requirement of deposit of certain percentage of duty demanded or penalty imposed and as it is mandatory the application deserves to be rejected. 4. The submissions advanced by the learned Counsel for the appellant and the learned Authorized Representative appearing for the Department have been considered. 5. Section 129E of the Customs Act provides that the Tribunal shall not entertain any appeal unless the appellant has deposited 7.5 per cent of duty/penalty. The Customs Act does not provide for waiver of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless 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 to be recorded in writing, to not less than twenty-five per cent of the debt, referred to in the second proviso. Thus, there is an absolute bar to entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre- deposit of fifty per cent of the debt due from him or determined, an appeal under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly fallacious. Under the second proviso to sub- section (1) of Section 18 of the Act the amount of fifty per cent, which is required to be deposited by the borrower, is computed either with reference to the debt due from him as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less. Obviously, where the amount of debt is yet to be determined by the Debts Recovery Tribunal, the borrower, while preferring appeal, would be liable to deposit fifty per 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for wavier of the pre-deposit were being preferred. Several litigations have travelled up to the Hon ble Supreme Court upon such applications for waiver of pre-deposit. 10. In view of the aforesaid statutory provisions of the Act, it appears that the statue has now effected wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and has made it mandatory to deposit 7.5% or 10% of the duty amount, as the case may be. It ought to be kept in mind that the relief is granted by the law itself. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
