Pre-Deposit Requirement can’t be Waived since Its’ Constitutional Validity is Upheld: Bombay HC [Read Judgment]

CBDT - Bombay High Court - Taxscan

A two-judge bench of the Bombay High Court, while dismissing a bunch of petitions, held that the requirement of pre-deposit to file an appeal before the authorities and Tribunal cannot be waived since the constitutionality of the provision is already upheld by the High Court in Haresh N. Vora vs. Union of India.

The bench comprising Justice M s Sanklecha and Justice M S Sonak was hearing four petitions wherein the appellants challenged a common order asking the petitioners to pay customs duty and imposing penalties on them under the provisions of Customs Act, 1962.

The petitioners filed writ petitions contending that the orders were passed without satisfying the requirements of natural justice. They also pleaded for an alternative relief of waiving the requirement of pre-deposits.

Observing that this is a fit case to consider the petitioners’ alternate relief of waiver of pre-deposit in the institution of appeals, the bench found that to issue any such writ to the Appellate Authority would virtually amount to directing the Appellate Authority to act contrary to the statutory mandate of Section 129E of the said Act.

The bench declined to issue a writ requiring the Appellate Authority to waive the requirement of pre-deposit in terms of Section 129E of the said Act and held that “No doubt, there are certain decisions, in which it has been held that the provisions of Customs Act will not affect the powers of jurisdiction of this Court under Article 226 of the Constitution of India. There is absolutely no dispute as regards such a proposition. This, however, means that in a given case there can be absolutely no bar to this Court examining orders made by statutory Authorities without requiring the petitioners to avail of alternative remedies that may be available under the Statute. In the facts and circumstances of the present case, however, no case is made out to entertain these writ petitions when there is really nothing demonstrated as to why the petitioners cannot avail the alternate remedy of appeal, which is very much available to them. The contention that the requirement of pre-deposit itself constitutes a hardship, is neither pleaded nor elaborated. In any case, once the constitutional validity of such provision is upheld, we are not inclined to issue any writ or direction to the Appellate Authority to waive such mandatory requirement and entertain the petitions.”

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