TMI Blog2022 (12) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be dismissed for non-compliance of the statutory requirement and is, accordingly, dismissed. - MISCELLANEOUS DIARY NO. 51423 OF 2019 IN APPEAL DEFECT DIARY NO. 53023 OF 2019 - MISC. ORDER NO. 267/2022 - Dated:- 7-12-2022 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) None for the Appellant Shri Rakesh Kumar, Authorised Representative of the Respondent ORDER The appeal was filed in the office on 23.12.2019 without making the statutory deposit contemplated under section 129E of the Customs Act, 1962 [ The Act ]. 2. Accordingly, a communication dated 26.12.2019 was sent by the registry of the Tribunal to the appellant to make the pre-deposit. The appellant was also informed that the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Pradesh High Court is still pending and, therefore, the matter may be adjourned. The matter was, therefore, adjourned to 21.03.2022. Learned counsel for the appellant did not appear before the Tribunal on 21.03.2022, 06.04.2022, 02.06.2022, 04.07.2022, 29.07.2022, 19.09.2022 when the matter was listed. Even today, learned counsel for the appellant has not appeared. 4. Learned authorized representative appearing for the Department has pointed out that when the matter was taken up by the Madhya Pradesh High Court on 17.11.2021, it was directed to be listed with Writ Petition No. 4557 of 2019. Learned authorized representative has also placed copy of the order dated 19.03.2019 passed by the High Court in Writ Petition No. 4557 of 2019 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entertain any appeal unless the appellant has deposited 7.5% of the duty. This appeal was filed in the Registry on 27 August, 2018 without complying with the aforesaid provision. A communication dated 14 September, 2018 was sent by the Tribunal to the appellant for providing evidence of mandatory deposit and the matter was directed to be listed on 5 October, 2018. The appellant by a letter dated 5 October, 2018 intimated the Tribunal that the appellant is not in a position to make the pre-deposit due to financial constraint. When the matter was listed before the Tribunal on 26 November, 2018, it was adjourned to 24 December, 2018 on a request made by the appellant. Today, when the matter is listed, all that has been stated is that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. The aforesaid statutory provision of law makes it very clear that it is mandatory for an appellant to deposit seven and a half percent of the duty demanded or penalty imposed or both. The petitioner has not deposited a single rupee and in those circumstances, keeping in view the provision of Sec. 129E, the appeal itself has been dismissed. Learned counsel for the petitioner has placed reliance upon the judgment delivered by the Andhra Pradesh High Court in the case of Indian School of Business, Hyderabad Vs. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 pre-deposit. 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. 195/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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