V C SOUNDARRAJAN Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The writ petition is directed against an order passed by the second respondent Tribunal directing the petitioner to make a pre-deposit of Rs. 25,000/- under the Customs Acts, 1962 and a sum of Rs. 25,000/- under the Gold (Control) Act, 1968.

(2.) Against the orders of the Collector of Customs, Tiruchirapalli, imposing penalty of Rs. 12,500/- under the Gold (Control) Act, and a sum of Rs. 50,000/- under the Customs Act, dated 30-12-1991, the petitioner preferred appeal before the Tribunal and also filed a petition for stay. The Tribunal found that prima facie, a case is not made out and considering the facts and circumstances of the case, the Tribunal directed the petitioner to pre-deposit on or before 30th November, 1992 and subject to which pre-deposit of balance amounts by the petitioner would stand disposed with pending appeal. The petitioner alleges in the affidavit that he was falsely implicated in a Customs offence in which gold bars were recovered on 1-3-1989. It seems gunny bags containing gold bars were found in the petitioners house. It is also stated in the affidavit that in his absence the same had been kept in the house, and that he had known and that if he had information that the gunny bags contained illegal smuggled gold bars, he would have not permitted the placement of gunny bags in his house. The petitioner challenges the said order on merits and that it is not necessary to state the merits, as alleged in the affidavit, of the case at this stage. In so far as the impugned order before this Court is concerned, the petitioner alleges in the affidavit that the impugned order is illegal and deprives the only right of appeal and renders the appeal provisions under the Customs Act illusory. It is also stated that it shows total non-application of mind by the Tribunal, that the petitioner's case has not been considered. It is also stated that the insistence of payment of any of the portion of the penalty is not warranted, that in this case the goods, which is the subject matter of the proceedings, viz. 650 gold bars are already in the custody of the respondents Department, and as such the penalty levied in respect of the same is not liable to be deposited since the goods continue to be under the control of the department. It is also stated that Section 129E of the Customs Act has no application to the facts of this case. It is also stated that the entire procedure of taking up the stay petition or insisting of stay petition to be heard before entertaining any appeal is neither justified nor warranted, by a plain reading of Sections 129 and 129E of the Customs Act. It is also stated in the affidavit that the right of appeal is constitutionally guaranteed under Article 21 of the Constitution of India and that the order passed by the Tribunal is illegal in so far it demands the petitioner to pay the penalty. It is also stated that Section 129E of the Customs Act, cannot be interpreted as a bar to entertain an appeal. With these allegations, the petitioner is before me.

(3.) Mr. B. Kumar, the learned counsel appearing for the petitioner reiterates the contentions raised in the affidavit filed in support of the writ petition and states that the condition under Section 129E of the Customs Act can be imposed only when the appeal is ripe for hearing and that the condition cannot be imposed even without entertaining the appeal. According to the learned counsel, first of all the appeal should be entertained and then only the question of passing any orders under Section 129E of the Customs Act will arise. The learned counsel further states that the Section 129E of the Customs Act will not apply to the case where the goods viz. gold bars in this case, are under the control of the respondent Department and as such Section 129E of the Customs Act will not apply to the facts of the case at all. The learned counsel further states that the hardship of the petitioner has not been considered by the Tribunal. Learned counsel for the petitioner heavily relies upon the decision in Shri Shyam Kishore and Others v. Municipal Corporation of Delhi and Another wherein the Supreme Court has considered the condition of pre-deposit of tax under the provisions of the Delhi Municipal Corporation Act, 1957.