Mandatory pre-deposit under the Customs Act for appeals is enforceable, and financial hardship alone does not exempt compliance.

ORDER

This writ petition has been filed challenging the impugned order in original dated 25.03.2023 passed by the first respondent. Under the impugned order in original dated 25.03.2023, the petitioner has been imposed penalty both under Section 114 and 114AA of the Customs Act, 1962 .

2. The following are the undisputed facts:

a) Earlier, the very same petitioner had approached this Court challenging the very same order in original dated 25.03.2023 before this Court by filing writ petitions in W.P. Nos.17616, 17619 and 17626 of 2023;

b) By order dated 15.06.2023, the petitioner was directed to exercise the alternative statutory appellate remedy provided under the Customs Act, 1962 and disposed of the said writ petition;

c) The petitioner also exercised the statutory appellate remedy by preferring the statutory appeal, aggrieved by the order in original dated

25.03.2023 passed by the first respondent;

d) The petitioner, however, did not pay the statutory pre-deposit amount for exercising the said statutory appeal. The petitioner sought for waiver of the pre-deposit amount along with the main appeal;

e) However, the appellate authority dismissed the appeal filed by the petitioner on the ground that the statutory pre-deposit amount was not paid by the petitioner.

3. Aggrieved by the order of the appellate authority, dismissing the appeal filed by the petitioner and aggrieved by the impugned order in original dated 25.03.2023 passed by the first respondent, the petitioner has filed this writ petition. In this writ petition, the petitioner has pleaded that he does not have the financial means to pay the penalty amount as imposed in the order in original dated 25.03.2023 and that he ought to have been granted waiver of the statutory pre-deposit amount by the second respondent (Appellate Authority).

4. Learned counsel for the petitioner has relied upon a Division Bench judgment of the Delhi High Court dated 28.04.2023 passed in W.P. (C) No.1242 of 2022 and C.M. Appl.No.3625 of 2022 in the case of Mohammed Akmam Uddin Ahmed and Other Vs. Commissioner Appeals Customs and Central Excise and Others. He would submit that the petitioner is also similarly placed as that of the petitioners therein and therefore, by applying the ratio of the Delhi High Court referred to supra, the petitioner on account of his lack of financial means to pay the statutory pre-deposit amount, the learned counsel for the petitioner would submit that the second respondent (Appellate Authority) ought to have taken note of the said fact and allowed the waiver of pre-deposit application filed by the petitioner. The case on hand falls under different footing. In the decision relied upon by the learned counsel for the petitioner, referred to supra, it was a case, where the petitioners were poor daily wage earners, who were unable to make a challenge to the seizure and confiscation on account of the penalty imposed on them. In the case on hand, the petitioner is a regular importer and he is the Managing Director of the Company and therefore, it can be inferred that he should be familiar with the statutory provisions of the Customs Act, 1962 relating to the mandatory requirement of depositing the statutory pre-deposit amount for preferring the statutory appeal.

5. Section 129E of the Customs Act, 1962 , makes it clear that any statutory appeal filed under Section 128 of the , shall not be entertained unless the pre-deposit amount stipulated under Section 129- E of the is made by the party preferring the statutory appeal. The section says 'shall', which means the payment of pre-deposit amount is mandatory. Further, as noted supra, the petitioner h