TaxTMI 
TaxTMI 
TaxTMI 
2006 (7) TMI 234
X X X X Extracts X X X X
X X X X Extracts X X X X
....alty. 2. On or about 19th September, 2003, the petitioner who was a Preventive Officer of Customs posted as Baggage Officer at the international arrival hall of the Netaji Subhas Bose International Airport, Kolkata, was entrusted with the duty of checking the baggage of passengers who opted for the Red Channel. 3. One Mannu Yadav arrived at Calcutta from Bangkok by Flight No. IC 732. The said passenger opted for the Red Channel and his baggage was searched by the petitioner. The petitioner charged the said Mannu Yadav Customs Duty of Rs. 3,000/- which was duly paid by the said Mannu Yadav. 4. The said Mannu Yadav was later investigated at the Exit Gate by the officers of the Air Intelligence Unit and his baggage was placed on the X-ray m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (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." 9. By the impugned order the Tribunal rejected the applications of the petitioner as also the application of the said Nand Kishore Rai f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppearing on behalf of the respondents on the other hand contended that there was no infirmity at all in the order of the Commissioner of Customs from which appeal had been preferred. 15. Mr. Bose submitted that in considering the question of waiver of pre-deposit the Tribunal was required to consider the prima facie merits of the appeal. The Tribunal in effect found that prima facie there were no merits in the appeal. 16. There can be no doubt that the right to appeal is a statutory right that can be circumscribed by statute as argued by Mr. Bose. The statute, in the instant case, has cast on the appellant, the burden of pre-deposit of the duty and interest demanded or the penalty levied. 17. At the same time, the proviso to Section 129E....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In any case, the compulsion of pre-deposit of the disputed duty and/or penalty irrespective of liquidity of funds available with the appellant, could lead to onerous liabilities with long term adverse consequences. 22. An appellant may have the financial capacity to pre-deposit the disputed duty and/or penalty. Even then blocking of funds could cause hardship if the duty and/or penalty disputed was not payable and the appellant had a gilt edged case. 23. In the case of Bongaigaon Refinery and Petrochem Ltd. v. Collector of Central Excise (A), Calcutta reported in 1994 (69) E.L.T. 193 (Cal.) Ruma Pal, J. held that the phrase undue hardship would cover a case where the appellant had a strong prima facie case. The phrase would also cover a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rits. 27. When pre-deposit is waived, the appeal is heard on merits. If the appeal fails, the appellant would have to deposit the disputed duty and/or penalty with inter alia interest. It would always be open to the Appellate Authority to pass appropriate orders to protect the interest of revenue. On the other hand, if pre-deposit of duty and/or penalty is not waived, a meritorious appeal may be thrown out on the technical ground of inability to deposit the disputed duty and penalty as pre-condition for hearing of the appeal. 28. The attention of the respondent Tribunal was drawn to the fact that the appellants were ordinary government servants with meagre salary, barely sufficient for the maintenance of the appellants and the members of ....