1971 (6) TMI 12

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.... a writ in the nature of Mandamus should not be issued directing the said opposite parties to recall, cancel and withdraw the orders dated 5th November, 1965 and 27th November, 1966 and to refrain and forbear from giving effect to the same as mentioned in the petition or why a writ in the nature of prohibition should not be issued prohibiting the opposite parties and their servants from giving effect to the orders as referred to in the petition or why a writ in the nature of Certiorari should not be issued cancelling, setting aside or quashing the impugned orders as aforesaid and they are further commanded at the hearing of the application to produce in Court or cause to be forwarded to the Registrar of this Court for being so produced all ....

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....mount of penalty imposed. It is stated that the respondents asked the petitioner to deposit the penalty but in spite of sufficient time given, the penalty was not deposited and as such the appeal was rejected for non-compliance with the provisions of section 129 of the Act. While preferring the appeal, the petitioner made an application before the Customs Authorities for exercising a discretion for dispensing with the deposit of penalty demanded under the order, appealed against. The petitioner made an application for stay of the realisation of demand under section 129 proviso. Section 129 reads as follows :- "129. Deposit, pending appeal, of duty demanded or penalty levied. — (1) Where the decision or order appealed against relates to....

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.... order but the proviso makes a provision for dispensing with' such "deposit if the authorities are of the opinion that the appellant would be put to under hardship. In the facts of this case it appears as the case decided by the Supreme Court that as the appellant before the Supreme Court made the application under the proviso the applicant was heard and an order was made after hearing the appellant and the amount of penalty to be deposited was reduced. On that basis the Supreme Court held that the appellant having failed to avail the opportunity given to the appellant, the appeal was properly dismissed for non-compliance with the said section. It appears to me that if an appellant makes an application before the proper authorities under se....