K.M. MUSTAFA Vs. CC

JUDGEMENT

(1.) BOTH the stay applications and appeals arises from ex parte order of dismissal of appeals under Section 129E of the Customs Act. K.M. Mustafa's appeal was dismissed by Order -in -Appeal No. 4/2000 dated 6.3.2000 on the ground that the Interim Stay Order No. 115/99 dated 13.1.1999 passed under proviso to Section 129E directing him to predeposit Rs. 1,00,000/ - out of Rs. 2,00,000/ - was not complied with and as such, the appeal was dismissed for non -compliance. In the case of Kattapani Kunhamoo, the appeal arises from ex parte order of dismissal in Order -in -Appeal No. 5/2000 -Cus dated 6.3.2000 wherein the Commissioner has noted that Interim order No. 116/99 dated 13.1.1999 directing the appellants to pre -deposit Rs. 1,00,000/ - out of Rs. 2,00,000/ - was not complied with and as such, the appeal was dismissed for non -compliance.

(2.) LD . Consultant Shri N.B. Sonavane appearing for both the appellants contended that interim order directing them to pre -deposit the amount was passed ex parte without granting opportunity of hearing. The appellant had asked for specific hearing before the Commissioner (Appeals) in the stay application and the stay applications were disposed of without grant of hearing and therefore it is violative of principles of natural justice. He further argued that even the Or -der -in -Original passed by Additional Commissioner of Customs dated 28.10.1999 was also of violative of principles of natural justice as opportunity to cross -examine the several witnesses was not granted and hence both the orders suffer from errors and requires to be set aside at this stage itself and matter remanded for de novo consideration.

(3.) HEARD Ld. D.R. Shri S. Sudarsan who points out to the facts of the case and the gravity of the offence committed by both the appellants. He points out to the search carried out on the person of both the appellants and recovery of foreign dollars which they had concealed in the form of capsules. He points out that a lot of evidence is on record to uphold the allegation and therefore, the order of pre -deposit of penalty passed by the Commissioner (Appeals) should not be disturbed and appellants should be directed to pre -deposit the amounts before the appeals are heard.