ORDER :

1. By the impugned order, the High Court has rejected the appeal carried by the appellant against the order passed by the Tribunal under Section 129E of the Customs Act, 1962 (hereinafter referred to as the ‘Act’). This is for the reason that the appellant has not complied with the requirement under Section 129E of the Act, as regards, the pre-deposit of the amount in terms of the said provision.

2. The appellant while traveling in a train was intercepted. The case against him appears to be that he was carrying Gold smuggled into India from Bangladesh and was accompanied with another person also. On conclusion of the proceedings, the Commissioner of Customs (Preventive) West Bengal, Kolkata passed a common order, wherein the appellant came to be visited with penalty in a sum of Rs. 75 lakhs. It appears that the other person was also asked to pay penalty. They preferred appeals before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata in the year 2017. The Tribunal finding that the appellant has not made pre-deposit dismissed the appeal. It is this order which was put in issue before the High Court and the High Court has upheld the order.

3. We heard Mr. Galib Kabir, learned counsel for the appellant. Learned counsel for the appellant would point out that demand for pre-deposit is not warranted in law. His argument is premised on the fact that the appellant is entitled to have this case dealt with, under the provision of 129E of the Act, which was in the statute book prior to the present avatar, substituting it by Act 25 of 2014.

4. Section 129E of the Customs Act, 1962, as it stood before substitution by Act 25 of 2014, reads as follows:

“129E. Deposit, pending appeal, of duty and interest, demanded or penalty levied - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty any interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer duty and interest demanded or the penalty levied:

Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause under hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:

Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.”

It is thereafter that the present version was inserted with effect from dated 06.08.2014, which reads as follow:

“129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal:

(i) under sub-section (1) of Section 128, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Principal Commissioner of Customs or Commissioner of Customs.

(ii) against the decision or order referred to in clause (a) of sub-section (1) of Section 129-A, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or d