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TMI Blog2006 (7) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the prima facie merits. When pre-deposit is waived, the appeal is heard on merits. If the appeal fails, the appellant would have to deposit the disputed duty and/or penalty with inter alia interest. It would always be open to the Appellate Authority to pass appropriate orders to protect the interest of revenue. On the other hand, if pre-deposit of duty and/or penalty is not waived, a meritorious appeal may be thrown out on the technical ground of inability to deposit the disputed duty and penalty as pre-condition for hearing of the appeal. The attention of the respondent Tribunal was drawn to the fact that the appellants were ordinary government servants with meagre salary, barely sufficient for the maintenance of the appellants and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sengers who opted for the Red Channel. 3. One Mannu Yadav arrived at Calcutta from Bangkok by Flight No. IC 732. The said passenger opted for the Red Channel and his baggage was searched by the petitioner. The petitioner charged the said Mannu Yadav Customs Duty of Rs. 3,000/- which was duly paid by the said Mannu Yadav. 4. The said Mannu Yadav was later investigated at the Exit Gate by the officers of the Air Intelligence Unit and his baggage was placed on the X-ray machine for the purpose of screening. On screening metal and stone like objects were detected. The baggage was searched and Cubic Zirconium weighing 45.856 kgs. and white metallic chains weighing 5.1 kgs. were allegedly detected and ceased by the concerned officers. 5. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (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 interests of revenue." 9. By the impugned order the Tribunal rejected the applications of the petitioner as also the application of the said Nand Kishore Rai for waiver of pre-deposit of penalty imposed on the appellants. The Tribunal recorded the submission of the appellants that the appellants being Government employees with meagre salaries were not in a position to pay the penalty of Rs. 50,000/- and pleaded financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal was required to consider the prima facie merits of the appeal. The Tribunal in effect found that prima facie there were no merits in the appeal. 16. There can be no doubt that the right to appeal is a statutory right that can be circumscribed by statute as argued by Mr. Bose. The statute, in the instant case, has cast on the appellant, the burden of pre-deposit of the duty and interest demanded or the penalty levied. 17. At the same time, the proviso to Section 129E confers discretion on the Tribunal to dispense with pre-deposit if the Tribunal is of the opinion that pre deposit would cause undue hardship to an appellant. 18. The object of introduction of the proviso is to give relief to the appellant, in an appropriate case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pre-deposit the disputed duty and/or penalty. Even then blocking of funds could cause hardship if the duty and/or penalty disputed was not payable and the appellant had a gilt edged case. 23. In the case of Bongaigaon Refinery and Petrochem Ltd. v. Collector of Central Excise (A), Calcutta reported in 1994 (69) E.L.T. 193 (Cal.) Ruma Pal, J. held that the phrase undue hardship would cover a case where the appellant had a strong prima facie case. The phrase would also cover a situation where there was an arguable case in the appeal. In the former case the appellate authority should dispense with the pre-deposit altogether whereas in the latter case the authority would have to safeguard the interest of the revenue. 24. In the case of Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o protect the interest of revenue. On the other hand, if pre-deposit of duty and/or penalty is not waived, a meritorious appeal may be thrown out on the technical ground of inability to deposit the disputed duty and penalty as pre-condition for hearing of the appeal. 28. The attention of the respondent Tribunal was drawn to the fact that the appellants were ordinary government servants with meagre salary, barely sufficient for the maintenance of the appellants and the members of their family. 29. Even though the aforesaid submissions with regard to the financial capacity of the appellants have been recorded by the Respondent Tribunal, the Respondent Tribunal has cursorily recorded a finding that the contention of the appellants that they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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