ORDER :

P.Sam Koshy, J.

Heard Mr. Kongala Mohan Goud, learned counsel for the petitioner and Mr. Dominic Fernandes, learned Senior Standing Counsel for the CBIC for respondent Nos.2 and 3. Perused the record.

2. The petitioner is aggrieved by the requirement of deposit of 7.5% of the duty imposed on the penalty amount as a pre-condition for filing of an appeal under Section 128 of the Customs Act, 1962 (for short ‘the Act’).

3. In the instant case, on 21.03.2024, the petitioner was said to be found carrying two gold bars in his pocket weighing 233.200 gms, the value of which was Rs.15,50,780/- while travelling from Dubai to Rajiv Gandhi International Airport, Hyderabad. The petitioner was subjected to proceedings in accordance with the Customs Act and an order in original was passed on 10.12.2024 whereby an order of confiscation was ordered and also an amount of Rs.14,00,000/- under Section 112(a) and 112(b) of the Act was imposed as penalty upon the petitioner.

4. Against the order in original dated 10.12.2024 passed by the Joint Commissioner, the petitioner had preferred an appeal before the Commissioner (Appeals) under Section 128 of the Act. However, it appears because of the pre-condition that is stipulated in law under Section 129E and for non-deposit of the amount required under Section 129E, the appeal has not been accepted. The instant writ petition has been filed only seeking for dispensing with the payment of 7.5% on the penalty amount.

5. For ready reference, it would be relevant at this juncture to refer to the unamended provision of Section 129E of the Act as stood before substitution of Act 25 of 2014 was made, as under:

“129-E. 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 3 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.”

6. The said clause subsequently stood substituted by way of amendment and the substituted version for ready reference is as follows:

“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