Vipul Ganda is an Independent Litigation Counsel with over 14 years of experience and a proven track record in Litigation and Dispute Resolution.
Dish TV Ltd. Versus Union of India & Ors.
Court / Forum : Delhi High Court Citation : W.P. (C) 4960/2020, Coram : Justice D.N. Patel and Prateek Jalan Subject : Waiver of pre deposit under Section 129E of the Customs Act, 1962 Date of Decision : 2020-06-06
Two show cause notices were issued by Customs Department to the petitioner, who is an importer of satellite/viewing cards and other parts of set up boxes, based upon the allegation that there was a misclassification of products by the petitioner.
The said show cause notices were adjudicated upon by the competent authorities under the Customs Act, 1962 against the petitioner. The orders passed by the authorities were appealable under Section 129A of the Customs Act, 1962.
The petitioner filed the present writ petition to direct CESTAT to entertain the appeals filed by the petitioner by dispensing with the requirement to deposit a further amount of Rs. 3,23,53,823/- being the balance of 7.5% of the assessed duty under Section 129 A of the Customs Act, 1962, in regard to the appeal against the said orders.
Prior to amendments of the statute, applications for waiver of the pre-deposit were being preferred by the assesses and several litigations had travelled up to the Hon’ble Supreme Court upon such applications for waiver of pre deposit.
With a view to avoid multiplicity of proceedings repeatedly in the Courts, Section 129E of the Act was amended by the Finance Act No.2 of 2014, with effect from 6th August 2014, to provide for mandatory pre deposit of a fixed percentage of the duty demanded as a pre-condition to the CESTAT entertaining an appeal. For an appeal against the order passed by an officer of the rank of the Commissioner of Customs and below, the deposit amount has been fixed at 7.5% and for an appeal against the order of the Commissioner (Appeals), it is 10%.
Whether there can be waiver of the amount which is required to be deposited under Section 129E of the Customs Act, 1962?
The Hon’ble High Court held that there is no question whatsoever of the waiver of pre-deposit as the statute 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 and the petitioner has to deposit only 7.5% or 10% of the duty assessed.
The Hon’ble High Court cited M/s Diamond Entertainment Technologies Pvt. Ltd. v. Commissioner, Central Goods and Service Tax [2019 (368) ELT 579 (Del)], wherein it was held that if the appeal is filed on or after 6th August 2014 then the condition stipulated in Section 129E of the Act has to be fulfilled for the appeal to be entertained.
Accordingly, the Hon’ble High Court dismissed the petition.
Vipul Ganda is a Delhi based Advocate practicing largely at the Delhi High Court. His practice focus is Dispute Resolution and Litigation and his practice areas include Arbitration, Commercial, Civil, Constitutional, Corporate and Criminal Litigation.