TaxTMI 
TaxTMI 
1971 (1) TMI 52
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....tion under the Act read with the material provisions of the Imports and Exports Control Act, 1947. The appellant was called upon by the third respondent, Collector of Customs and Excise, Cochin, to show cause why he should not be penalised under Section 112(b) of the Act and why he should not be prosecuted under Section 135(b) of the Act. Similarly another notice was issued against one Rodrigues, with whom we are not concerned in these proceedings. The appellant made representations against the show cause notice and he was also given an opportunity to contest the allegations made against him. The third respondent by his order dated July 18, 1964, held that the ruby stone in question was smuggled into India by Rodrigues at the instance of the appellant and in pursuance of an agreement entered into between them and that the ruby stone was handed over to Rodrigues by the brother of the appellant at Rangoon. By the said order the third respondent confiscated the ruby stone and levied a personal penalty of Rupees 20,000/- on the appellant under Section 112 of the Act on the ground that he was the prime mover behind the smuggling of the ruby stone. A personal penalty was also imposed on ....
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....ond respondent to deposit the sum of Rupees 10,000/- as required by the first respondent. As the appellant again failed to avail himself of this opportunity, the second respondent by its order dated April 23, 1966 rejected the revision petition holding that the matter cannot be considered on merits and that the Government of India saw no reason to interfere with the decision of the Central Board of Excise and Customs. The writ petition filed by the appellant to quash the orders of the first and second respondents was dismissed in limine by the High Court and it is the said order that is challenged before us. 6. It may be mentioned at this stage that the appellant was prosecuted under Section 135(a) and (b) of the Act, before the District Magistrate, Ernakulam. The District Magistrate by his judgment dated February 28, 1966 found the appellant and Rodrigues not guilty of the offence with which they were charged and acquitted them under Section 258 of the Code of Criminal Procedure. 7. Various grounds of attack against the legality of the demand notice for depositing the penalty under Section 129(1) of the Act have been taken, both before the High Court in the writ petition as ....
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....Collector of Customs & Excise, Cochin v. A.S. Bava, (1968) 1 SCR 82 = 1978 (2) E.L.T. (J 333) - AIR 1968 SC 13 the point that arose for consideration was whether Section 129 of the Act governed an appeal filed under the Central Excises and Salt Act, 1944, by virtue of the notification dated May 4, 1963 issued by the Central Government under Section 12 of the said Act. This Court held that Section 129 of the Act was not attracted. 13. None of the above decisions have any bearing on the contentions raised by Mr. Trivedi. 14. In order to appreciate the contentions of the learned Counsel for the appellant, it is now necessary to refer to Sections 128 and 129 relating to appeals and deposit of penalty or duty pending appeal. "128. (1) Any person aggrieved by any decision or order passed under this Act may, within three months from the date of the communication to him of such decision or order - (a) where the decision or order has been passed by a Collector of Customs, appeal to the Board; (b) where the decision or order has been passed by an officer of customs lower in rank than a Collector of Customs, appeal to the Appellate Collector of Customs : Provided that the Ap....
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.... period for filing the appeal by a further period not exceeding three months. Sub-Section (2) provides for an opportunity being given to the appellant to be heard, if he so desires, and the Appellate Authorities passing such orders by way of confirming, modifying or annulling the decision or order appealed against, subject to two provisos contained therein. Section 129 (1) makes it obligatory on the person filing an appeal to deposit, pending the appeal, with the proper officer the duty demanded or penalty levied where the order or decision appealed against relates to any duty demanded in respect of goods, which are not under the control of Customs Authorities or of penalty levied under the Act. The proviso gives power to the Appellate Authority in particular cases to dispense with such deposit either unconditionally or subject to such conditions, as it may deem fit, when it is of the opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant. Under Section 129(1) the appellant, in this case, when he filed the appeal to the first respondent against the order of the Collector of Customs levying penalty had to normally deposit the entire am....
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.... on his request for exempting him from depositing the penalty and having regard to the representation made by him, the first respondent reduced the amount of penalty to be deposited to Rs. 10,000/- that is half the amount of penalty levied by the Collector. The appellant did not comply with this requirement and therefore his appeal was rejected for non-compliance with the provisions of Section 129(1). The appellant availed himself of his right to challenge this order in revision under Section 130 of the Act, before the second respondent. The appellant was given a further opportunity to deposit the sum of Rs. 10,000/- but he failed to avail himself of this further opportunity afforded to him by the second respondent and hence his revision was rejected. 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 ....