2002 (11) TMI 116 - HC - Customs

Summary

Issues Involved:
1. Legality of the Tribunal's order directing petitioners to deposit 50% of penalties.
2. Application of Section 129E of the Customs Act, 1962.
3. Consideration of financial hardship and prima facie case.
4. Applicability of Section 114 of the Customs Act to the petitioners.

Detailed Analysis:

1. Legality of the Tribunal's Order Directing Petitioners to Deposit 50% of Penalties:
The petitioners challenged a consolidated order dated 7th August 2002 by the Customs, Excise and Gold (Control) Appellate Tribunal, which mandated them to make a pre-deposit of 50% of the penalties imposed as a condition precedent for entertaining their 24 appeals. The penalties ranged between 2.20 crores to 14.50 crores. The Tribunal's order was based on the premise that the petitioners, in their capacities as company officials, were involved in fraudulent export transactions.

2. Application of Section 129E of the Customs Act, 1962:
Section 129E stipulates that no appeal against duty demanded or penalty levied can be entertained unless the appellant deposits the duty or penalty. However, the proviso to this section allows the Appellate Authority to waive such deposits if it would cause "undue hardship" to the appellant. The High Court emphasized that the Tribunal must exercise this discretion based on relevant materials, honestly, and objectively, while also considering the interest of the Revenue.

3. Consideration of Financial Hardship and Prima Facie Case:
The petitioners argued that the Tribunal did not apply its mind to their financial status or the actual factual position, thus failing to apply the settled principles governing stay applications. They contended that the Tribunal overlooked the fact that two petitioners, B.L. Dhaluka and Dinesh Thakur, were not employees of the implicated companies, yet were directed to deposit penalties. The High Court noted that the Tribunal's order lacked consideration of the petitioners' financial hardship and whether they had a prima facie case, making the pre-deposit requirement potentially unduly harsh.

4. Applicability of Section 114 of the Customs Act to the Petitioners:
The petitioners contended that Section 114, which deals with penalties for improper exports, did not apply to them as there was no specific allegation of their involvement in the export transactions. They argued that unlike Section 140, which provides for vicarious liability, Section 114 does not impose such liability on directors or employees. The High Court refrained from delving into whether penalties under Section 114 were justifiable, as this was a matter for the Tribunal to decide during the final hearing of the appeals.

Conclusion:
The High Court found that the Tribunal's order directing the petitioners to deposit 50% of the penalties lacked application of mind and did not consider the petitioners' financial status or whether they had a prima facie case. The Tribunal was influenced by the quantum of the alleged fraud without addressing critical factual aspects. Consequently, the High Court set aside the Tribunal's order and remanded the cases for reconsideration of the stay applications, emphasizing the need for the Tribunal to adhere to settled principles governing stay applications.

Judgment:
All writ petitions were allowed, and the rule was made absolute with no order as to costs.