TMI Blog1986 (10) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... r agents under Section 116 of the Customs Act. On appeal, the Collector of Customs (Appeals) rejected the appeal holding that as per provisions of Section 129 of the Customs Act, it is obligatory on the part of the appellants to deposit the amount of penalty. The appellants had not deposited the amount of penalty levied. 3. During the hearing of this appeal Shri Deepak Motiwala of M/s. Motiwala Co., made the following submissions :- (a) That the appellants are the agents of a foreign company which had gone into liquidation; (b) That the Appellate Collector had not heard the appellants before rejecting the appeal; (c) The Appellate Collector had not given any opportunity to deposit the amount. He had not issued any show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 302/-, the penalty levied in respect of the crate which had been cleared by the consignee. 4. Shri Senthivel appearing for the Collector submitted that the appellants were required to deposit the penalty levied before their appeal could be heard. Since they had not deposited, the Appellate Collector had rightly rejected the appeal and therefore that order of the Appellate Collector is correct and legal. 5. As regards the merits, Shri Senthivel submitted that in case the Bench accept the contention of the appellants that the short-landing was only one crate against Item No. 161, then the matter may be remanded to the Deputy Collector for consideration afresh. 6. We have carefully considered the submissions made on both the sides. Quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests of Revenue. This Section does not make any exception regarding the penalty levied under Section 116 and any other Section. On the other hand, it clearly contemplates deposit of penalty levied under the Act. The penalty under Section 116 is also a penalty under the Act and therefore the contention of Shri Deepak Motiwala that the appellants are not required to deposit the penalty levied under Section 116 has no substance. There is also no merit in the contention of Shri Deepak Motiwala that because the appellants have executed a bond contemplated by Section 42(1), there is no abligation to make the deposit in order to hear their appeal. Provisions of Section 42(1) and Section 129-E are independent of each other. They are mutually e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980 E.L.T. 114(Gauhati). The relevant observations of the Court are: It is correct that the Appellate Collector is competent to reject the appeal for non-compliance with Section 129(1) of the Customs Act, 1962, but whole of such Section 129 does not fix any limit within what time the deposit is to be made. It simply says that pending the appeal that duty demanded and the penalty levied shall be paid. That being the position after the prayer made under the proviso to sub-section (1) of Section 129 was rejected the appellant should be asked to comply with the requirements of sub-section (1) of Section 129 within a reasonable time as may be fixed by the Appellate Authority and if he fails to do that, then the Appellate Authority will have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared to have been short-landed, one crate has since been located and cleared on 31-10-1981 and only one crate was short-landed. In view of the said certificate, no penalty could be levied in respect of the said crate under Section 116. Therefore, the appellants claim for refund becomes admissible. But then the appellants have not adduced any evidence before us as to the contents and the value thereof of the goods in the crate cleared on 31-10-1981. Therefore, the request for refund of half the penalty amount levied against Item No. 161 cannot be straightaway granted by us. The matter requires examination by the authority which is competent to grant the refund. 13. In the result, we allow this appeal, set aside the order passed by the App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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