V. K. MEHROTRA, J.

( 1 ) PETITIONER M. C. Goel has assailed before the Customs, Excise and Gold (Control) Appellate tribunal, New Delhi an order by which penalty to the tune of Rs. 5,00,000/- has been imposed upon him. Under Section 129e of the Customs Act, 1962 when any appeal relates to any Duty demanded or any penalty levied under the Act, the person desirous of appealing against such decision or order is required to deposit, pending the appeal, the duty demanded or penalty levied. Under the proviso to this section, the requirement of deposit of the amount of Duty or penalty can be dispensed with if the Tribunal is of opinion that the deposit of the amount would cause undue hardship to such a person. The Tribunal is empowered to dispense with the deposit subject to such conditions as it considers fit. This is clear from a reading of Section 129e which says : "129-E, Deposit, pending appeal, of duty demanded or penalty levied - Wherein any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect 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 the appeal deposit with the proper officer the duty demanded or the penalty levied; Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the collector (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 interest of the revenue. "

( 2 ) IN the present case, the Tribunal required the petitioner to deposit a sum of Rs. 50,000/- in cash and furnish a bank guarantee for a sum of Rs. 4,50,000/ -. The case of the petitioner is that he approached his Banker for obtaining the Bank guarantee but was told that the Bank guarantee can be issued only if the entire amount is deposited by the petitioner. The petitioner made an application before the Tribunal for review of its order but failed. Thereafter, he approached this court for redress in writ petition No. 9654 of 1986 on. "june 18, 1986. This Court, while directing that the petition be listed for admission after the vacations, stayed the operation of the order of the Tribunal dated May 6, 1986.

( 3 ) AFTER the aforesaid order, the petitioner approached the Tribunal with the request that the appeal filed by him be disposed of without requiring him to give any security because of the interim order passed by the Court. However, the Tribunal did not accede to this request and directed that the appeal be put up for hearing only after the petitioner informs the Tribunal about the result of the writ petition filed by him. Consequently, on July 8, 1987, the petitioner approached this Court again through writ petition No. 504 of 1987. The principal prayer in this petition is that the Tribunal be directed to dispose of the petitioners appeal on its merits without asking him to give security of the nature demanded from him in view of the ad interim order passed by this Court on June 18, 1986.

( 4 ) THE respondents have filed counter affidavit in writ petition No. 9654 of 1986. However, in the view that we are taking, it is not necessary for us to notice the facts which have been brought on the record of the two writ petitions by the petitioner or by the respondents in the aforesaid counter affidavit.

( 5 ) WE have seen earlier that under Section 129-E of the Customs Act, the Tribunal has been given a discretion, under the proviso to that section, to dispense with the requirement of deposit subject to such conditions as it deems fit to impose so as to safeguard the interest of the revenue. Thus the Tribunal can do only if it has opinion that the demand for deposit of the amount of Duty or penalty levied on the

Click Here to Read the rest of this document