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1993 (9) TMI 111

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..... dent against the order of the 2nd respondent imposing penalty under Section 112(a) of the Customs Act, 1962, and pending the appeals, the petitioners filed applications for waiver of the pre-deposit of penalty. The common order passed by the 1st respondent in the interlocutory applications seeking waiver of pre-deposit is the subject matter of the writ petitions. 3. Under the Proviso to Section 129(E) of the Customs Act, 1962, the Collector (Appeals) or the Appellate Tribunal has been vested with the jurisdiction to dispense with the deposit of duty demand or penalty levied if it is of the opinion that such deposit of duty or penalty would cause undue hardship to the appellant subject to such conditions as it may deem fit to impose to saf .....

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..... ercise of my extraordinary jurisdiction under Article 226 of the Constitution to interfere with the discretionary interlocutory order on the basis of the materials and documents placed before it by the parties concerned. 5. Mr. C.A. Sundaram, learned Addl. Central Govt. Standing Counsel, would submit that K. Siraj, one of the writ petitioners, had come before this Court stating that after the issue of notice under Section 124 of the Customs Act, 1962, on certain grounds for confiscation of the goods or for imposing penalty, there can be no further enquiry under Section 107 or 108 of the Customs Act. This contention was repelled by a Division Bench of this Court and the said decision is reported in Union of India v. K. Siraj [1993 (65) E.L .....

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..... ay, however, be noticed that in W.M.P. Nos. 12095 and 12096 of 1988, a learned single Judge of this Court on 27-7-1985 ordered interim stay of the impugned order and notice. The interim stay has continued ever since. While the petitioner has been benefited by the order of interim stay passed by this Court, the Revenue has suffered for the reason that even the amount, which the petitioner is willing to pay as a condition for the appeal, has not been deposited yet. Learned Counsel for the petitioner has stated at the bar that the petitioner is willing to deposit half of the demand of the duty and for the other half willing to give security to the satisfaction of the authority concerned. This, in my opinion, may, in the circumstances of the ca .....

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..... C. Soundarrajan v. Collector of Customs [1993 (65) E.L.T. 358]. Instead of helping the petitioners, that decision helps the Revenue because the learned judge has categorically laid down that rights under Sections 129, 129D of the Customs Act are statutory rights and such rights can be circumscribed by imposing such conditions. 10. The decision reported in Akbar Badruddin Jiwani v. Collector of Customs, Bombay -1990 (47) E.L.T. 161 (SC) = 1990 (2) S.C.C. 203 lays down that the Department should establish mens rea for imposition of penalty and confiscation of goods, That judgment was rendered by the Apex Court on an appeal under Section 130(E)(b) of the Customs Act and it does not arise out of interlocutory proceedings. The question of mens .....

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..... after due application of mind and on consideration of various relevant materials and circumstances. When such a discretionary power has been exercised in accordance with the legal principles for the exercise of such powers, it is not for this court to interfere with such orders. No prima facie case has been made out in favour of the petitioners. On the contrary, as stated supra, a strong case rests in favour of the Revenue. Balance of convenience is wholly against the petitioners inasmuch as amounts due to Revenue cannot sought to be blocked from being remitted by the petitioners by taking consistent recourse to judicial forums and seeking orders of stay. 13. The contention of the learned Counsel for the petitioners that the requirements .....

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