SUBHASH BANSAL Vs. CC, NEW DELHI

JUDGEMENT

(1.) BOTH the appellants have come in appeal before the tribunal against order dated 31.7.2009 passed by the ld. Commissioner with following consequences:

(2.) CONSEQUENCE aforesaid arose on the allegation that both the appellants were actively connived with committed illegal smuggling. Investigation gathered oral and documentary evidence for placing before the learned Adjudicating Authority for appropriate adjudication of the charge. Investigation began from 26 April, 2004 and reached to conclusion by adjudication on 31.7.2009.

(3.) SHRI L.P.Asthana, learned Advocate moving the stay petition on behalf of the Appellant, Shri B.B.Goel submits that when goods were seized by Customs Authorities and those are in their custody, there cannot be insistence of pre -deposit for hearing the appeal according to the statutory provisions contained in Section 129E of Customs Act, 1962. He brings out that so far as penalty is concerned there cannot be joint and several liability to such consequence since penalty is fastened with liability incurred by commitment of offence by and individual. He therefore submits that when there is arbitrary and vague decision by learned Adjudicating Authority, the appellant cannot be called upon to make pre -deposit of penalty. So also his argument is that when Section 125(2) of Customs Act, 1962 operates, section 28 does not operate. He places decision of the Apex Court in the case of Jagdish Cancer & Research Centre reported in 2001 (132) ELT 257 (SC). Relying on para 11 of the said judgement, his submission is that penalty cannot be imposed under Section 114A if Section 28 is not invokable. His last argument is that there shall be proper determination of penal liability by a speaking and reasoned order to impose penalty considering the law applicable. But a vague decision cannot give rise to penal consequences of law.