TMI Blog2023 (5) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Statute 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. 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 requirement of pre-deposit under section 129E of the Customs Act, came up for consideration. The High Court held that when the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither the appellant has appeared nor the defects have been removed. By way of last opportunity, we grant four weeks further time to the appellant to remove the defects, failing which an appropriate order for non-compliance of the statutory provisions may be passed. List on May 15, 2023 . 3. Today when the matter has been called neither the learned counsel for the appellant has appeared nor the statutory deposit has been made. 4. The requirement of pre-deposit under section 35F of the Central Excise Act, as made applicable to service tax as they apply in relation to duty of excise by virtue of section 83 of the Finance Act, has not been complied with by the appellant. 5. Section 35F of the Central Excise Act, as amended on August 06, 2014, deals with deposit of certain percentage of duty demanded or penalty imposed before filing an appeal is reproduced below: Section 35F. Deposit of certain percentage of duty demanded or penalty imposed before filling appeal. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relevant portion of the judgment of the Supreme Court is reproduced below: 7. Section 18(1) of the Act confers a statutory right on a person aggrieved by any order made by the by the Debts Recovery Tribunal under Section 17 of the Act to prefer an appeal to the Appellate Tribunal. However, the right conferred under Section 18(1) is subject to the condition laid down in the second proviso thereto. The second proviso postulates that no appeal shall be entertained unless 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal, was beyond the provisions of the Act, as is evident from the second and third provisos to the said Section . At best, the Appellate Tribunal could have, after recording the reasons, reduced the amount of deposit of fifty per cent to an amount not less than twenty-five per cent of the debt referred to in the second proviso. We are convinced that the order of the Appellate Tribunal, entertaining appellant's appeal without insisting on pre-deposit was clearly unsustainable and, therefore, the decision of the High Court in setting aside the same cannot be flawed. (emphasis supplied) 8. The principles laid down in the aforesaid decision of the Supreme Court in Narayan Chandra Ghosh were reiterated by the Supreme Court in Kotak Mahindra Bank Pvt. Limited vs. Ambuj A. Kasiwal Ors. [Civil Appeal No. 539 of 2021 decided on 16.02.2021]. 9. In Chandra Sekhar Jha vs. Union of India and Another [Civil Appeal No. 1566 of 2022 decided on February 28, 2022], the Supreme Court noted that the Tribunal had rejected the appeal filed under section 129A of the Customs Act for the reason that the appellant had not complied with the requirement of pre-deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the amendment in the Act, especially Section 129E thereof, there is no question whatsoever of the waiver of pre-deposit. As stated hereinabove, the statue itself has waived 90% or 92.5% of the duty amount, as the case may be, assessed by the authorities under the Customs Act, 1962. The petitioner-assessee has to deposit only 7.5% or 10% (as the case may be) of the duty assessed. Thus, there is no question of further waiver of the amount which is required to be deposited under Section 129E of the Customs Act, 1962. (emphasis supplied) 11. A Division Bench of Delhi High Court in M/s Vish Wind Infrastructure LLP v/s Additional Director General (Adjudication), New Delhi [Writ Petition (C)2178/2019 decided on August 28,2019] 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 06.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of the Delhi High Court in Diamond Entertainment Techno. P. Ltd. v/s Commissioner of CGST, Dehradun [2019 (368) E.L.T. 579 (Del.)]. 13. The Madhya Pradesh High Court in Ankit Mehta v/s Commissioner, CGST Indore [W.P. No. 4557/2019] 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. After examining the provisions of section 129E of the Customs Act, the Madhya Pradesh High Court observed as follows:- 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 provisions of section 129E, the appeal itself has been dismissed. This Court after careful consideration of the aforesaid judgments is of the opinion that section 129E does not empower the ..... 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