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TMI Blog1987 (4) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... e rules to the Hon ble Appellate Tribunal provides that in the event of the non-appearance of the appellant on the date fixed the appeal/application would result in dismissal in default of the appeal and not application? 2. That the Rule (20) further stipulates that Hon ble Tribunal, in its discretion, either dismiss the appeal for default or hear and decide it on merits. The appeal having not been heard on merits, would the present order under Reference survive? 3. That the penalty is not a revenue so that a condition can be imposed while ordering dispensation. 4. That the order fixing reduced amount as pre-deposit looking into the undue hardship caused to the appellant is an interlocutory order as such an order is subject to modific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of Rs. 2 lakhs on the applicant under Section 114 of the Customs Act, 1962 the applicant filed his appeal on 21-12-1983 without depositing the amount of penalty in terms of Section 129 E of the Customs Act, 1962. However, after a lapse of considerable period the applicant filed an application for dispensing with the mandatory requirement of the deposit of the amount of penalty in terms of proviso to Section 129 E, ibid. But the applicant did not attend the hearing on 10-2-1984 with the result the said application was dismissed for default. After a considerable lapse of time the applicant applied for setting aside the dismissal order and prayed for restoration of the said application which was restored on 2-6-1986 and after taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty or the penalty. Thus if a party does not comply either with the main Section or with any order that being passed under the proviso to that Section the Appellate Authority is fully competent to reject the appeal for non-compliance with the provisions of that Section. Thus the question as to whether the order passed under the said proviso by the Tribunal is interlocutory order or final order does not arise. On this point the law laid down by the Hon ble Supreme Court in the case of Navin Chandra v. The Central Board of Excise Customs, New Delhi, AIR 1971 SC 2280 is the complete answer to the questions proposed by the applicant which may be reproduced with advantage as follows :- No doubt Section 129 does not expressly provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid." 6. Regarding Question No. 6: This question again does not arise out of the order passed by this Tribunal in question. When the provisions of the Customs Act are specific on the point and the action of the Tribunal to dismiss the appeal for want of compliance of Section 129-E or its proviso finds approval of the Supreme Court in the case of Navin Chandra, supra, the question of taking into consideration the provisions of FERA 1973 for the purpose of reference application does not arise. 7. However, before parting with the case I would like to mention that even Section 52 of the present FERA 1973 provides for the deposit of the amount of penalty imposed under Section 50 ibid and its second proviso empowers the Appellate Board to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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