important point
Section 129E of the Act would be attracted where the goods in question are not in the custody of the Revenue.

JUDGMENT

S.B. SINHA, J.— Leave granted.

2.Interpretation of the provisions of Section 129E of the Customs Act, 1962 (for short “the Act”) is in question in this appeal which arises out of a judgment and order dated 4.10.2004 passed by a Division Bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 9569 of 2004.

3.An adjudication proceeding was initiated against the appellant. Assessment of Custom Duty was made. An appeal was preferred thereagainst. The said appeal was dismissed for failure to pre-deposit a sum of Rs. 3,30,00000/- as directed by the Court of Appeal.

4.We may notice that in the earlier round of litigation when a statement was made before the High Court that the Tribunal may hear the appeal on merit without asking the appellant to make any pre-deposit, it was asked to make that prayer before the Tribunal. Pursuant thereto an application was filed. The Tribunal in terms of its order dated 14.01.2004 opined:

“We accordingly order that the appellant company deposit Rs. 3 crores out of the total duty demand upon such deposit further deposit of duty and penalty imposed on the company is waived and recovery thereof stayed. We further order that the director of the company Shri R.C. Agarwal deposit Rs. 20 lakhs and the power of attorney holder of the Company Shri H.R. Agarwal deposit Rs. 10 lakhs within 12 weeks of the date of the order. Compliance on 26.4.2004. Appeal is liable to be rejected for non-compliance without further notice.”

5.A writ application filed by the appellants questioning the correctness of the said order has been dismissed by reason of the impugned judgment.

6.Mr. C.N. Sreekumar, learned counsel appearing on behalf of the appellants, in support of this appeal, inter alia would submit:

(i)The High Court committed a manifest error insofar as it failed to take into consideration the ingredients of Section 129E of the Act.

(ii)Section 129E, if construed properly, would not give rise to a conclusion that in absence of any provision made in that behalf, non-compliance of the order of pre-deposit itself would lead to automatic dismissal of the appeal.

(iii)A right of appeal conferred upon a suitor having been provided for in a statute, the provision for pre-deposit must receive strict interpretation.

(iv)Provisions for payment of court fee and power to grant stay having been conferred in the Tribunal, the impugned judgment could not have been passed particularly when Section 129E of the Act does not provide for any consequence arising out of non-compliance of the order of pre-deposit.

7. Mr. Vikas Singh, learned Additional Solicitor General appearing on behalf of Union of India, on the other hand, would submit that interpretation of Section 129E of the Act is concluded by a decision of this Court in Vijay Prakash D. Mehta and Another v. Collector of Customs (Preventive), Bombay,1 [(1988) 4 SCC 402].

8. The Act was enacted to consolidate and amend the law relating to customs. It provides for assessing an order of custom duty. It also provides for seizure of goods. Penalty may also be levied by the adjudicating authorities. Chapter XV of the Act provides for appeals to the Commissioner from any decision passed by an officer of custom lower in rank than the said authority. Section 128A provides for the procedure therefor. Section 129 provides for the constitution of the appellate tribunal wherefor procedures have also been laid down. Proviso appended to Section 129A enumerates the cases in respect whereof jurisdiction of the appellate tribunal is barred. Sub-section (6) of Section 129A envisages payment of court fee. Sub-section (2A) of Section 129B specifies a period of three years during which the appeal may be disposed of. A Tribunal is also empowered to grant stay. Section 129E, however, mandates pre-deposit of any duty and interest in appeal which is preferred in respect of the goods which are not under the control of the custom authorities or any penalty levied under the Act. Proviso