9911796707
TMI Blog1988 (8) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... he proviso to Section 129E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and property. In the facts and circumstances of the case and all the relevant factors, namely, the probability of the prima facie case of the appellant, the conduct of the parties, have been taken into consideration by the Tribunal. The purpose of the section is to act in torrem to make the people comply with the provisions of law. Thus unable to accept the submission that there was improper rejection and non-consideration of material and relevant facts. If that is the position then the appeal has no merit and is accordingly rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Accordingly, by an order dated 29.10.1985, of the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, he was discharged and his bail-bond was cancelled. 3.So far as the appellant J.D. Mehta is concerned, he had replied to the show-cause notice issued by the Enforcement Directorate and the matter is pending adjudication. In the meantime, the proceedings under Sections 111 to 114 and 118 of the Act resulted in the order dated 19-1-1984 of the Additional Collector of Customs (Preventive) Bombay, whereby he imposed a penalty of Rs. 3,00,000/- on each of the appellants. It may be mentioned that each of the appellant was alleged to have been caught red handed with the foreign exchange to the tune of Rs. 11,90,648/-. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late 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 revenue." 5.The aforesaid Section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation of this type the condition for deposit of penalty was bad as it whittled down the appellants' right of appeal. This, in our opinion, is incorrect. Shri Ganesh tried to contend that the right of appeal is being whittled down by the procedure followed in this case. He drew our attention to certain observations of this Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh Ors. [(1953 SCR 987) = 1983 E.L.T. 1277 (S.C.)]. There this Court held that when the right to appeal vests, change of law after initiation of proceedings in lower Court would not divest the vested rights of the appellant. The right of appeal is a matter of substantive right and not merely a matter of procedure, and this right becomes vested in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 129 of the Act were made applicable to appeals under the Excise Act. The Section required an appellant to deposit, pending the appeal, the duty or penalty imposed, and empowered the Appellate Authority, in his discretion, to dispense with such deposit pending the appeal in any particular case. The respondent therein filed an appeal against the duty imposed on him under the Excise Act and prayed for dispensation of the deposit. The Collector, who was the appellate authority, rejected the prayer and when no deposit was made within the time fixed, dismissed the appeal. The respondent filed a petition in the High Court which was allowed, and the Collector was directed to hear the appeal on merits. This court held that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by itself following the rules of natural justice would be violative of any right - constitutional or statutory without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. The proviso to Section 129E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and property. 14.In the facts and circumstances of the case and all the relevant factors, namely, the probability of the prima facie case of the appellant, the conduct of the parties, have been taken into consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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