Judgment

VAIDIALINGAM, J.:- This appeal, by special leave, is against the judgment and order dated August 24,1966 of the Circuit Bench of the Punjab High Court at New Delhi dismissing in limine Civil Writ No. 666-D of 1966 filed by the appellant to quash the orders of the first and second respondents dated December, 7, 1965 and April 23, 1966 respectively.

2. The main question that arises for consideration in this appeal is whether the order of the first respondent, Central Board of Excise and Customs, New Delhi, rejecting the appeal filed by the appellant for non-compliance with the provisions of Section 129 of the Customs Act, 1962 (Act 32 of 1962) (hereinafter to be referred as the Act) was justified. The point lies within a very narrow compass and hence it is not necessary to state elaborately the allegations made against the appellant for taking action under the Act read with the material provisions of the Imports and Exports Control Act, 1947. The appellant was called upon by the third respondent, Collector of Customs and Excise, Cochin, to show cause why he should not be penalised under Section 112 (b) of the Act and why he should not be prosecuted under Section 135 (B) of the Act. Similarly another notice was issued against one Rodrigues, with whom we are not concerned in these proceedings. The appellant made representations against the show cause notice and he was also given an opportunity to contest the allegations made against him. The third respondent by his order dated July 18, 1964 held that the ruby stone in question was smuggled into India by Rodrigues at the instance of the appellant and in pursuance of an agreement entered into between them and that the ruby which was handed over to Rodrigues by the brother of the appellant at Rangoon. By the said order the third respondent confiscated the ruby stone and levied a personal penalty of Rupees 20,000/- on the appellant under Section 112 of the Act on the ground that he was the prime mover behind the smuggling of the ruby stone. A personal penalty was also imposed on Rodrigues, who had carried the ruby stone. It was specifically stated in the order that the penalties imposed were without prejudice to institution of any action under Section 135 of the Act.

3. The appellant filed an appeal on October 7, 1964 before the first respondent under Section, 128. After raising his contentions in the memorandum of appeal on merits, he pleaded that it will not be possible for him to deposit the penalty amount of Rs. 20,000/- as was necessary under Section 129 of the Act, on the ground that he was innocent and that compliance with the requirement of deposit will result in undue hardship. He further pleaded that it was beyond his means to deposit such a large amount. Accordingly, he requested the first respondent to exempt him from making the deposit of the penalty imposed as a preliminary requirement for hearing the appeal.

4. The first respondent by his order dated December 7, 1965, rejected the appeal for non-compliance with the provisions of Section 129 of the Act. From the order it is seen that as the appeal had been filed without depositing the penalty levied by the third respondent, the appellant was called upon on November 23, 1964 to deposit the same within 15 days and he was also further informed that his failure to deposit the penalty amount would render his appeal liable to be rejected for non-compliance with the provisions of Section 129. The appeal was heard on this preliminary point regarding waiver of the deposit under the said section. After considering the various grounds that appear to have been pressed on behalf of the appellant, the order of the first respondent proceeds to state that it agreed to consider the appeal on merit provided a sum of Rs. 10,000/- out of the total penalty levied was deposited. The appellant was informed on August 17, 1965 about this requirement by registered letter and was called upon to deposit the same within days. As the registered