Customs, Excise and Gold Tribunal - Delhi
Mohanlal Ghanshamdas vs Collector Of Customs on 15 June, 1987
Equivalent citations: 1987(13)ECR535(TRI.-DELHI), 1987(30)ELT1014(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. By the impugned order Additional Collector (Customs) New Delhi ordered for the confiscation of torque wrenches under Section l11(d) of the Customs Act, 1962 imported by the appellants without a valid licence but gave the appellants importer an option to redeem the same on payment of a Redemption Fine of certain sum and also imposed a personal penalty of Rs. 25,000/-. Being dis-satisfied, the appellants have filed the instant appeal. However, the appellants instead of depositing the amount of penalty of Rs. 25,000/-imposed upon them, as required under Section 129E of the Customs Act, moved an application for waiving the condition of pre-deposit of the amount of penalty in terms of the proviso to the said Section. In the said application the appellants, inter alia, prayed that the operation of the impugned order be stayed by waiving the condition of pre-deposit of the amount of penalty imposed. The said application was taken up for hearing on 11-5-1987. Shri T.V. Krishnamurthy, learned consultant appeared on behalf of the appellants and prayed that the goods in question ordered to be confiscated have already been released to the appellants on furnishing the Bank guarantee in terms of the interim order dated 10th February, 1987 passed by the Hon'ble High Court of Delhi in C.W.P. No. 357/87 and therefore the authorities below be directed not to enforce the said Bank guarantee pending the disposal of the appeal in hand. As regards the penalty, Shri T.V. Krishnamurthy, learned consultant showed his willingness to deposit the same. After hearing the parties this Tribunal passed the following order:-
"Since the appellants have already shown their willingness to deposit the amount of penalty of Rs. 25,000/- as stated above, we direct the appellants to deposit the said amount of penalty within four weeks from today. As regards the confiscation of the goods in question and their release on furnishing the Bank guarantee as directed by the Hon'ble High Court as stated above, it would be suffice to say that we are not called upon to pass any order on this count in terms of Section 129E of the Customs Act. However, the Assistant Collector, Customs would be free to act in accordance with the order passed by the Hon'ble High Court in the said pending Writ Petition."
and directed the Registry to fix the case after one month for mention. Accordingly, the case was fixed for hearing for 15-6-1987 under intimation to the parties.
2. When the case was called on 15-6-1987, Shri Rajiv Garg, learned Advocate appeared on behalf of the appellants and Smt. Nisha Chaturvedi, learned SDR appeared for the respondent. After hearing both the sides we dismissed the appeal with the direction that detailed order will follow. Here are our reasons.
3. At the time of hearing Shri Rajiv Garg, learned Advocate for the appellants submitted that the appellants have already filed their Special Leave Petition against the said order dated 11-5-1987 in the Hon'ble Supreme Court of India raising some alleged substantial questions of law and therefore any further hearing in the instant appeal be kept in abeyance till the disposal of the Special Leave Petition by the Hon'ble Supreme Court. Shri Rajiv Garg, learned Advocate also drew our attention to the fact that the appellants have also made the same prayer in their application dated 10-6-1987 duly supported by the affidavit before this Tribunal.
4. Before we proceed further it would be useful to reproduce Section 129E of the Customs Act and its effect. Section 129E of the Customs Act read thus:-
"129E. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied:
Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue."
The Hon'ble Supreme Court in the case of Navin Chandra v. The Central Board of Excise and Customs, New Delhi, AIR 1971 Supreme Court 2280, have described the legal effect of the said provisions as under:-
"18. 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."
5. At the outset we enquired from Shri Rajiv Garg, learned Advocate for the appellants whether any stay order has been passed by the Hon'ble Supreme Court in his said Special Leave Petition. To which, he frankly submitted that no such stay order has been passed by the Hon'ble Vacation Judge as the same was not found of any urgent nature. He further submitted that the said Special Leave Petition is also not admitted for hearing. On a query from the Bench as to whether the appellants have deposited the amount of penalty as directed by this Tribunal in its order dated 11-5-1987, Shri Rajiv Garg, learned Advocate frankly admitted that the appellants have not deposited the amount of penalty but hastily added that the appellants have already moved the application as stated above on 10-6-1987 for keeping the matter in abeyance. Shri Rajiv Garg, learned Advocate vehemently contended that this Tribunal on 11-5-1987 directed the appellants to deposit the amount of penalty of Rs. 25,000/-but the appellants have already furnished a Bank guarantee for this amount pursuant to the order passed by the Hon'ble Delhi High Court even prior to the order passed by this Tribunal on 11-5-1987. In reply, Smt. Nisha Chaturvedi, learned SDR submitted that it is factually wrong to say that the appellants have already furnished the Bank guarantee for the amount of penalty of Rs. 25,000/- as contended by the appellants. She further submitted that there was no such direction or order by the Hon'ble High Court. She drew our attention to the interim order passed by the Hon'ble Delhi High Court dated 10th February, 1987 to show that by the said order while issuing notice for March 12, 1987 the Hon'ble Delhi High Court ordered that in the meanwhile the respondents are directed to release the goods of the petitioner against Licence No. 0438029 conditionally on the petitioner furnishing Bank guarantee for certain sum to the satisfaction of the Additional Collector of Customs concerned. She further submitted that in the absence of any stay order by the Hon'ble Supreme Court in the said Special Leave Petition said to have been filed by the appellants there is no ground for keeping the hearing of the instant appeal in abeyance and since the appellants have not complied with the said stay order dated 11-5-1987 by depositing the amount of penalty as directed within four weeks the appal should be dismissed in terms of Section 129E of the Customs Act as laid down by the Hon'ble Supreme Court in the case of Navin Chandra v. E. & C. Central Board, Delhi, supra. From the stay order dated 11-5-1987 it is clear that the learned consultant who appeared on behalf of the appellants on that day showed his willingness to deposit the amount of penalty of Rs. 25,000/-imposed upon the appellants by the impugned order within four weeks. Accordingly, this Tribunal vide its order dated 11-5-1987 directed the appellants to deposit the said amount of penalty within four weeks from 11-5-1987 as prayed for. As stated above it is an admitted position that the appellants have not complied with the said stay order by depositing the amount of penalty of Rs. 25,000/- within four weeks. It is also an admitted fact that no stay order has been passed by the Hon'ble Supreme Court in the Special Leave Petition said to have been filed by the appellants. Even according to the appellants themselves the said SLP has neither been admitted for hearing nor Special Leave to file Appeal has been granted to the appellants. It is settled law that mere filing of an appeal or SLP does not amount to stay of the order appealed against. There is no valid reason for keeping the hearing of the appeal in abeyance as prayed for by the appellants. Consequently, the application filed by the appellants on 10-6-1987 containing the said prayer is without any substance. It appears that the appellants are obviously Resorting to delaying tactics. Consequently, the same is dismissed.
6. Since the appellants have not deposited the amount of penalty as ordered by this Tribunal on 11-5-1987, we have no alternative but to dismiss the appeal for failure to comply with the order passed by this Tribunal on 11-5-1987 under proviso to Section 129E of the Customs Act - a result which has been brought about only by the default by the appellants in complying with the order of this Tribunal to deposit the amount of penalty.
7. In the light of the foregoing discussions the appeal is dismissed.