The main legal point established in the judgment is the requirement for the Appellate Tribunal to judicially consider relevant factors when rejecting an application for dispensation of pre-deposit, and to exercise jurisdiction in a manner that takes into account the petitioner's circumstances.

1. The petitioner herein was levied with the penalty under the provisions of the Customs Act, 1962 as well as under the provisions of the Gold Control Act. A sum of Rs. 75,000/- was levied under the provisions of the Customs Act and Rs. 50,000/- under the Gold Control Act. These penalties were imposed consequent upon the seizure of the gold from the petitioner. The petitioner filed an appeal to the Appellate Tribunal at Madras (second respondent herein). He also sought dispensation with the requirement of the prior deposit of the penalty imposed because under the provisions of these enactments deposit of the penalty imposed by the Original Authority is a condition for the entertainment of the appeal by the Appellate Tribunal. The petitioner in support of his prayer for dispensation of the pre-deposit stated that he was a man without any means and therefore was not in a position to deposit such a huge amount of Rs. 75,000/- under one enactment and Rs. 50,000/- under other enactment. This was rejected by the Tribunal by observing that the petitioner has not established that he was not possessed of any property. The Tribunal also observed that the petitioner was not a mere carrier and gold of very substantial value of Rs. 3,00,000/- was recovered from him and that he has induced others also to carry the gold which later was seized. However, the Tribunal reduced the sum to be deposited by Rs. 50,000/- and Rs. 25,000/- respectively.

2. The petitioner again filed an application seeking extension of time for depositing the penalty stating that in spite of his best efforts he was not able to raise the funds and prayed for further three months time. This also was rejected. Since the petitioner did not deposit the amounts his appeal stood dismissed subsequently. All these orders are challenged in this writ petition as they are inter-connected.

3. Though rule was issued in the year 1987 this Court has not granted any interim relief and therefore nothing prevented the respondents 1 and 3 from recovering the penalties from the petitioner all these years. I am told that no such recovery has been made.

4. Mr. J. Jesthmal, learned Counsel for the petitioner, contended that under Section 129E the pre-deposit could be dispensed with if the Appellate Authority is of the opinion that such a deposit would cause undue hardship to the petitioner. The hardship to the petitioner in this case is quite patent. He made an attempt to raise the funds but could not do so and sought extension of time to meet fresh attempts. Even after the dismissal of the appeal filed by him the penalties imposed against him were not recovered so far by the respondents 1 and 3. The learned Counsel pointed out that if funds were available with the petitioner respondents 1 and 3 would not have hesitated to proceed to recover the penalties in the absence of any interim order.

5. The validity of Section 129E of the Customs Act came up before the Supreme Court in Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive) , Bombay, AIR 1988 SC 2010 . The Supreme Court pointed out that the right of appeal given to a party is conditioned upon his fulfilling the requirement of the deposit and such a condition cannot be held to be invalid. However, Supreme Court pointed out that the rejection of the application for dispensation of the pre-deposit will have to be judicially considered by the Tribunal by applying the relevant factors and if the rejection is based on such relevant factors, only then the order could be upheld.

6. No doubt the right of appeal here is statutory and statute has imposed certain conditions. This provision has been upheld by the Supreme Court but the Supreme Court has not exhaustively laid down as to what are the relevant factors, though generally indicated that the probability of the prima facie case and the conduct of the appellant are the relevant factors, (vide para 14 of the aforesaid decision). In the instant case, before me, the Tribun