Customs, Excise and Gold Tribunal - Delhi
Suresh Chander Anand vs Collector Of Customs And Central Excise on 16 April, 1987
Equivalent citations: 1987(11)ECR753(TRI.-DELHI), 1987(29)ELT574(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. The following alleged questions of law have been proposed by the applicant said to have arisen out of Order No. A/517/86-NRB dated 8-10-1986 passed by this Tribunal in Appeal No. CD/DEL/2476/83-NRB for being referred to the High Court.
"1. That the Rules (20) of the rules to the Hon'ble Appellate Tribunal provides that in the event of the non-appearance of the appellant on the date fixed the appeal/application would result in dismissal in default of the appeal and not application?
2. That the Rule (20) further stipulates that Hon'ble Tribunal, in its discretion, either dismiss the appeal for default or hear and decide it on merits. The appeal having not been heard on merits, would the present order under Reference survive?
3. That the penalty is not a revenue so that a condition can be imposed while ordering dispensation.
4. That the order fixing reduced amount as pre-deposit looking into the undue hardship caused to the appellant is an interlocutory order as such an order is subject to modification; but passing of the order dismissing of appeal without hearing on merits being an interlocutory order or final order; if an interlocutory order then it is subject to review by the Hon'ble Tribunal itself.
5. That the dismissal of appeal without hearing it on merits on the basis of record already available with the Hon'ble Appellate Tribunal is unjustified, unwarranted and illegal inasmuch as the non-compliance with Section 129 E; being an interlocutory order subject to revival/ modification would not render the appeal to dismissal but the appeal would be adjourned sine die permitting reasonable time to the appellant to seek remedies from Higher Courts or seek review of the order.
6. That the intention of the legislature in framing Section 129 E is not seeking dismissal of the appeal but dismissal of the stay granted under the proviso. It is submitted that under the FERA 1947 (Section 23E which correspond to Section 52 of FERA, 1973) the condition then stipulated under proviso (b) to Sub-section (2) of Section 23E was specific, that appeal shall stand dismissed in the event of non-deposit, which stands repealed under FERA, 1973 omitting the provision making the appeal to dismissal. The dismissal of the appeal is not the intention of the legislature as such dismissal of appeal in the present case is illegal."
2. The facts leading to the application in hand are as follows:-
Being dis-satisfied with the order passed by the Collector of Customs, New Delhi imposing a penalty of Rs. 2 lakhs on the applicant Under Section 114 of the Customs Act, 1962 the applicant filed his appeal on 21-12-1983 without depositing the amount of penalty in terms of Section 129E of the Customs Act, 1962. However, after a lapse of considerable period the applicant filed an application for dispensing with the mandatory requirement of the deposit of the amount of penalty in terms of proviso to Section 129 E, ibid. But the applicant did not attend the hearing on 10-2-1984 with the result the said application was dismissed for default. After a consider- able lapse of time the applicant applied for setting aside the dismissal order and prayed for restoration of the said application which was restored on 2-6-1986 and after taking into consideration each and every aspect of the matter the applicant was ordered to deposit Rs. 15,000/- only towards the amount of penalty of Rs. 2 lakhs imposed upon him within four months from 2-6-1986 and the balance amount was dispensed with. The applicant was also expressly directed to report the compliance of the said order to the Registry. The applicant did not comply with the said order of the Tribunal dated 2-6-1986 with the result the appeal was dismissed in terms of Section 129-E of the Customs Act for non-compliance.
3. Regarding Question Nos. 1 & 2;
These questions do not arise out of the order passed by this Tribunal in question as the appeal was dismissed for non-compliance of the mandatory provisions of Section 129-E of the Customs Act and not for default.
4. Regarding Question No. 3;
Section 129-E of the Customs Act, 1962 expressly makes a provision for the deposit of "the duty demanded or the penalty levied" and its proviso further empowers the Tribunal to dispense with "the deposit of duty demanded or the penalty levied" after taking into consideration the undue hardship of the applicant and the interest of the revenue. Thus, this question being not a question of law is not referable.
5. Regarding Question Nos. 4 & 5;
Provisions of Section 129-E of the Customs Act are mandatory. This Section makes it obligatory on an applicant to deposit the duty or penalty pending the appeal. Proviso to that Section empowers the Tribunal to dispense with the duty or the penalty. Thus if a party does not comply either with the main Section or with any order that being passed under the proviso to that Section the Appellate Authority is fully competent to reject the appeal for non-compliance with the provisions of that Section. Thus the question as to whether the order passed under the said proviso by the Tribunal is interlocutory order or final order does not arise. On this point the law laid down by the Hon'ble Supreme Court in the case of Navin Chandra v. The Central Board of Excise & Customs, New Delhi, AIR 1971 SC 2280 is the complete answer to the questions proposed by the applicant which may be reproduced with advantage as follows:-
"No doubt Section 129 does not expressly provide for the rejection of the appeal for non-compliance with the requirement regarding the deposit of penalty or duty; but when Sub-section (1) of Section 129 makes it obligatory on an appellant to deposit the duty or penalty pending the appeal and if a party does not comply either with the main Sub-section or with any order that may be passed under the proviso the appellate authority is fully competent to reject the appeal of non-compliance with the provisions of Section 129(1). That is exactly what the first respondent has done in this case. Accepting the contention of Mr. Trevedi will mean that the appeal will have to be kept on file for ever even when the requirement of Section 129(1) has not been complied with. Retention of such an appeal on file will serve no purpose whatsoever because unless Section 129(1) is complied with, the appellate authority cannot proceed to hear an appeal on merits. Therefore, the logical consequence of failure to comply with Section 129(1) is the rejection of appeal on that ground.
No doubt, the rejection of the appeal by the first respondent will mean that the appellant is bound by the order of the third respondent levying penalty. Such a result has been brought about only by the default of the appellant in complying with the order of the first respondent to deposit half the amount of penalty. Therefore, it follows that the rejection of the appeal by the first respondent was legal and the order of the High Court dismissing the writ petition is valid."
6. Regarding Question No. 6:
This question again does not arise out of the order passed by this Tribunal in question. When the provisions of the Customs Act are specific on the point and the action of the Tribunal to dismiss the appeal for want of compliance of Section 129-E or its proviso finds approval of the Supreme Court in the case of Navin Chandra, supra, the question of taking into consideration the provisions of FERA 1973 for the purpose of reference application does not arise.
7. However, before parting with the case 1 would like to mention that even Section 52 of the present FERA 1973 provides for the deposit of the amount of penalty imposed Under Section 50 ibid and its second proviso empowers the Appellate Board to dispense with such deposit either unconditionally or subject to such conditions as it may deem fit where the Appellate Board is of the opinion that the deposit to be made will cause undue hardship to the appellant. It deserves to be mentioned here that under the corresponding provisions of the erstwhile FERA 1947 no such power to dispense with the mandatory requirement of such deposit was given to the Appellate Board. It appears that to avoid any undue hardship to the appellant the Legislature has made a provision in the FERA 1973 for dispensing with the requirement of such deposit if in the opinion of the Appellate Board asking the appellant to deposit will cause undue hardship.
8. In the result, the reference application is rejected as no question of law meriting reference to the High Court arises.