AI Drafter 
TaxTMI 
TaxTMI 
1990 (6) TMI 133
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....ed the stay petition. The stay petition was dismissed because it was observed by the Bench that the appellant should be in a position to deposit the amount of penalty as the appellant had said that he would be able to borrow money from his relatives and deposit the amount with the bank and obtain bank guarantee and provide the same and in that case the appellant can as well deposit the amount in cash with the Government. The Bench also transferred the matter to the North Regional Bench. 2. The appellant did not deposit the amount of penalty. 3. Meantime, the appellant preferred Special Civil Application No. 2535/88 in the High Court of Gujarat under provisions of Article 226 of the Constitution of India wherein he has challenged the v....
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....run alias Hussein Kabiju v. U.O.I. and Others - AIR 1988 (Gujarat) 218. The Ld. SDR opposed this submission and submitted that the appeal should be dismissed as a whole. He cited Navin Chander Chhotelal v. The Central Board of Excise & Customs - 1981 (8) E.L.T. 679 (S.C.) = AIR 1971 (S.C.) 2280. 8. We have perused the record and citations produced by both the sides and also considered the arguments. 9. To appreciate the legal position and rival contentions, it is necessary to narrate a few facts also. The appellant had reached Amritsar on 2-5-1986 with a Mercedes Car of foreign make valued at Rs. 112926.28 (C1F). After completion of necessary formalities, the appellant was allowed to enter into India alongwith vehicle. The car was cov....
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....nder 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 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." 11. Interpretating provisions of this Sec. in Hussain Haji Harun alias Hussein Kabiju v. U.O.I. & Others (supra), the Hon'ble Gujarat High Court has, i....
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....'ble Gujarat High Court is followed, would be that the appeal as far as the order of confiscation of the motor car is concerned, would have to be decided on merits. Assuming for the sake of argument that the Tribunal accepts the appeal, the order of confiscation will have to be set aside. Ld. Advocate, Sh. Trivedi was asked to explain what would be the effect of such a decision on the order of penalty, he replied and quite rightly, that the order of penalty will also have to be set aside. The reason for this is quite simple and logical because penalty is imposed in such cases as a consequence of an order of confiscation under Section 111 of the Customs Act, 1962. This is clear from the wording of Section 112 of the Customs Act which calls f....
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....lty was imposed. The Hon'ble Supreme Court was concerned with interpretation of provisions of Sec. 129(1) of the Act as it stood at the relevant time i.e. before the Act was amended by the Finance (2) Act 1980 (44 of 1980). At the relevant time, Sec. 129(1) read as under : "129(1). Where the decision or order appealed aginst related to any duty demanded in respect of goods which are not under the control of Customs authorities or any penalty levied under this Act, any 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." 13. It can be seen from the above that provisions of old Sec. 129(1) of the Act were pan materia with provisio....