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TMI Blog1984 (1) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... , within 30 days and to intimate the Registry of the compliance. 3. When the appellant did not intimate the compliance a show cause notice dated 24-11-1983 was issued to the appellant to show cause within 15 days from the date of receipt of the notice as to why his appeal should not be rejected for non-compliance with the provisions of Section 129-E of the Customs Act. In reply to the said show cause notice the appellant has filed the above numbered Misc. Application. 4. In this application among other things the appellant stated that on account of his dire financial condition, it was physically impossible for him to comply with the terms and conditions imposed in the order of the Tribunal dated 20-10-1983. As the appellant has no financial resources and does not even have any bank account it was impossible for him to deposit or give a personal bond for the balance amount which he cannot honour. It was further stated the appellant states that the said order merely related to the question of Stay of recovery of the penalty amount and the said terms and conditions pertained only to the question of stay of the said recovery. The appellant craves leave to refer to the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Collector however, urged that pre-deposit is a condition precedent under Section 129-E of the Customs Act to hear the appeal. Since the appellant had not complied with the terms of the order dated 20-10-1983 and since he did not seek any extension of time for compliance of the order, the only course left to the Tribunal is to dismiss or reject the appeal. 7. The short question for consideration is whether the Tribunal cannot dismiss or reject the appeal of the appellant for non-compliance with the provisions of Section 129E of the Customs Act, 1962 (hereinafter to be referred to as the Act ). Section 129E reads : where in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt s appeal shall have to be heard on merit. Shri Canteenwala mainly relied on the decision of the Bombay High Court referred to above. We have carefully gone through the said decision. The question which arose for consideration in that case was whether compliance with the provisions contained in the sub-rule (1A) of Rule 3 of Order 41 of the Civil Procedure Code is a condition precedent to file an appeal against the decree for payment of money. After referring to the legislative history His Lordship Jus- tice Ginwala held that the Parliament never intended that a person who intends to prefer an appeal against the decree for payment of money has, as of necessity, to comply with the provisions contained in the said sub-rule as a condition precedent for the tenability of the appeal. The ratio of the decision is not applicable to the facts of the present case. The provisions contained in Order 41 of the Civil Procedure Code is materially different from the provisions contained in Section 129-E of the Customs Act. The provisions similar to the provisions of Section 129-E came up for consideration before the Supreme Court in a case reported in AIR 1971 Supreme Court page 2280, Navinchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is concerned, the requirement regarding the deposit will come into force only if the goods in respect of which duty is demanded are not under the control of Customs Authorities. Though sub-section (1) of Section 129 may appear to make it necessary that the appellant should deposit the duty or penalty before his appeal could be heard on merits, the proviso whittles down the regour of sub-section (1). But in the Act by the proviso to sub-section (1) of Section 129, which has been quoted above, discretion has been given to the appellate authority to either waive the deposit of the entire amount of penalty or duty or reduce the quantum to be so deposited if the appellate authority is of the opinion that that the requirement regarding the deposit of the full amount of penalty or duty will cause undue hardship to the appellant. The Supreme Court further observed in paragraph 18 of the judgment no doubt Section 129 does not expressly provide for the rejection of the appeal for non-compliance with the requirement regarding the deposit of penalty or duty ; but when sub-section (1) of Section 129 makes it obligatory on an appellant to deposit the duty or penalty pending the appeal and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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