By TIOL News Service

MUMBAI, FEB 20, 2019: CESTAT dismissed the appeal filed by the assessee on the ground that the mandatory compliance required in terms of s.35F of the CEA, 1944 was not made.

The petitioner is before the Bombay High Court and argues that the impugned order is without any adjudication on merits and is, therefore, per se illegal; that it is violative of the constitutional mandate of Article 14 and 19(1)(g) of the Constitution of India.

The High Court while dismissing the petition explained -

+ The wording of the Section (35F) is clear. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal unless the pre-condition is satisfied. Thus, the amount required to be deposited having been clearly stated, there is no escape from the consequences and the appeal cannot be entertained without compliance with the condition of deposit. Thus, this is a right of appeal created by the Statute and that right is conditional.

+ The Tribunal gave him enough time to comply with that condition. Once the Tribunal found that the condition is not complied with, then, it was not open to it to adjudicate the matter on merits.

+ We are not concerned with the merits of the appeal. For that to be entertained, there is a condition prescribed by the Statute. That condition was not complied with. Once that condition was not complied with, the appeal was not entertainable.

Nonetheless, the High Court informed the petitioner that in the event they comply with the statutory condition of pre-deposit within four months and report compliance, the Tribunal would restore the appeal and ad judicate on merits.

Incidentally, the plea of the petitioner that the High Court waive this condition or relax or dilute its rigors was held to be without any merit.

It was observed – "The writ jurisdiction is not meant to grant any benefit to parties like the petitioner or to enable him to get over such pre-condition. Once the statutory pre-condition for entertaining an appeal has been upheld and that does not violate the mandate of Article 14 and 19(1)(g) of the Constitution of India nor does it make the right of appeal illusory, then, this writ petition cannot be entertained."