9911796707
TMI Blog2002 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the date of receipt of the order. 5.Shorn of unnecessary details, the material facts giving rise to the present petitions are that on the basis of some information that three companies, namely, M/s. Ganpati Exports Limited, M/s. Ganpati Commerce Limited, and M/s. Ganpati Combines Ltd., all based at Calcutta, had made exports of plastic woven sacks to Russia towards fulfilment of their export obligations under the DEEC scheme, against advance licences issued to them, by over-valuing these consignments by almost six times and further, instead of stipulated exports to GCA countries to earn free foreign exchange at the time of issue of advance licences, exports were made to Russia for which payment is under RPA terms, involving export obligation of 100% CIF value of licenses, investigations were undertaken by the Directorate of Revenue Intelligence. Alleging that the four petitioners, in their capacities as the Chairman, Managing Director and General Managers respectively, were actively involved in the said nefarious transactions, after issuing six show cause notices to the said companies and the petitioners, the Commissioner of Customs, Kandla levied the following penalties on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposits may be made within a period of 8 weeks from the date of receipt of this order and compliance reported. Subject to pre-deposit of the said 50% of the penalty, waiver of the pre-deposit of the balance penalty is allowed." Thus, the amounts directed to be deposited range between 1.1 crores and 6.25 crores. 7.We have heard Mr. C. Hari Shankar on behalf of the petitioners and Mr. Jayant Bhushan on behalf of the respondents. 8.It is strenuously urged by Mr. Hari Shankar, on behalf of the petitioners, that the direction by the Tribunal to the petitioners to deposit 50% of the penalties imposed is illegal inasmuch as the impugned order has been passed without any application of mind, and that the Tribunal has not only lost sight of actual factual position, it has also failed to apply the settled principles governing stay applications under the Act. Learned Counsel would submit that despite the fact that it was brought to the notice of the Tribunal that B.L. Dhaluka and Dinesh Thakur, two of the petitioners herein, had nothing to do with M/s. Ganpati Commerce or M/s. Ganpati Combines, as they were not their employees, the Tribunal has, in an omnibus manner, directed these two pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in the exports. It is asserted that this being a case of large scale fraud, in which the petitioners were actively involved, this Court should not interfere in exercise of writ jurisdiction with the discretionary order of the Tribunal. 10.At this juncture we are not concerned with the question whether penalty under Section 114 of the Act could be levied on the petitioners or not because that would be a matter to be gone into by the Tribunal at the time of final hearing of the appeals. It would neither be proper nor desirable for us to embark upon a detailed inquiry at this stage itself to find out whether the stand of the petitioners is correct or not. The only question for consideration is as to whether the Tribunal has exercised the discretion vested in it under Section 129E of the Act, in directing the petitioners to deposit 50% of the impugned penalties levied on them, as a condition precedent for entertainment of their appeals, on sound legal principles by taking into consideration all the relevant facts. 11.The right to appeal is a statutory right and while granting such a right, the Legislature is competent to circumscribe it by imposing conditions. Section 129E of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other well established principles namely; (i) whether the assessee has made out a prima facie case in his favour; and (ii) the balance of convenience qua deposit or otherwise have also to be borne in mind while dealing with a stay application. It is trite that while dealing with an application, under Section 129-E of the Act it would neither be desirable nor the authority is required to embark upon a detailed inquiry to find out whether the stand of the petitioner is correct or not. But, at the same time, the order must reflect the awareness of the authority to the dispute before him and its application of mind to the factors involved, for, in exercising power under Section 129-E of the Act, it acts as a quasi judicial authority. This being an important statutory function, is coupled with a duty and therefore, cannot be performed mechanically. 14.Having carefully perused the impugned order, particularly the afore-extracted penultimate paragraph, in the light of the aforenoted settled principles governing a stay application, we are constrained to observe that the order suffers from the vice of non-application of mind. From the order it appears that the Tribunal got swayed by the ..... 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