Case Law Details
by virtue of Section 129E the right to appeal as conferred under the said provision is a conditional right, the legislature in its wisdom has imposed a condition of deposit of a percentage of duty demanded or penalty levied or both. The fiscal legislation as in question can very well stipulate as a requirement of law of a mandatory pre deposit as a condition precedent for an appeal to be entertained by the appellate authority. In view of the above settled position in law, Section 129E of the Act cannot be held to be unconstitutional on the ground as assailed by the petitioner.
Learned Counsel for the revenue is quite right in relying on the decision in the case Nimbus Communications Ltd. (supra), though it arises in the context of Section 35F of the Central Excise Act which is a provision pari materia to Section 129E of the Act. We may observe that the decision was rendered in deciding a central excise appeal, in which the question of law interalia as considered by the Court was that the right of appeal being a vested right, whether the provisions of law as applicable at the commencement of the lis would apply or the amended provisions as on the date of filing of appeal would apply. Though the Court was not dealing with the validity of the provision, the Court considering the provisions of law and considering the decision of the Madras High Court in “M/s. Dream Castle Vs. Union of India & Ors.” 8 and the Allahabad High Court in the case “Ganesh Yadav Vs. Union of India” 9 held that Section 35F of the Central Excise Act did not defeat or render the vested right of appeal illusory and that the condition of pre deposit is a reasonable condition and such condition did not defeat the vested right of appeal. The Court accordingly confirmed the order of the Tribunal directing the appellants therein to deposit the sum mandated by Section 35F(1) of the Central Excise Act
As regards the contention of the petitioners relying on the decision of the Supreme Court in Mardia Chemicals Ltd. Vs. Union of India (supra) that the condition of deposit of 75% was held to be invalid and therefore, Section 129E of the Act also is required to be held to be invalid, cannot be accepted. The submission in the present context is too far fetched. Under Section 129E of the Act, the requirement of deposit is 7.5% and 10% respectively as provided in sub clauses (i), (ii) and (iii) of the said provision. As noted by us earlier such reasonable percentage of deposit cannot be labeled as unreasonable deposit. It is surely not a deposit of 75% as considered by the Supreme Court in Mardia Chemicals Ltd. Vs. Union of India (supra) so as to render the right of appeal illusory. In our opinion, the petitioners’ reliance on the decision in Mardia Chemicals Ltd. is completely misplaced.
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our Import of Crude Sulphur was during 2004-05.We have gone in Appeal two Times , Commissioner of Customs has allowed us Waiver of Pre-Deposit in our Case during 2012 , now again we have gone in Appeal during 2018 , Customs Appeal is forsing us for 7.5% Pre-Deposit , Our Appeal peertains to Erstwhile issue. Sir we would like to know Section 129E of the Customs Act, 1962 ( Pre-Deposit ) is appplicable to us. Please Guide us.