9911796707
TMI Blog1987 (8) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000/- on the appellant Shri B. A. Gandhi, Rs. 50,000/- on the appellant Shri Subhas Madhubhai Mehta, Rs. 50,000/- on Kirit M. Mehta and Rs. 50,000/- on Shri Suresh M. Mehta. Feeling aggrieved by the order passed by the Collector, all the four appellants herein filed appeals before the Central Board of Excise and Customs. The Board clubbed all the 4 appeals and passed the impugned order. The operative part of the Board's order reads : "The Advocate, Shri J. M. Majumdar, for all the four appellants was heard at Bombay on 24.3.1981 on the preliminary point regarding the waiver of the requirement of the pre-deposit of the penalty amounts. After hearing him, the Board in exercise of the discretion vested in it by the proviso to sub-section (1) of Section 129 of the Customs Act, 1962, had directed that all the four appellants -should deposit a sum of Rs. 10,000/- each as part payment towards the penalty imposed on each and produce proof of having done so before the Board on or before 20.4.1981. It was also made clear to the Advocate that if this was not done, the appeals would be dismissed without further reference either to him or to his clients for non-compliance with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out its order dated 24.3.1981. The portion culled out clearly shows that the appellants herein were granted time till 20.4.1981 to make the deposit. In the circumstances the contention of Shri Trivedi that the Board's order is not capable of implementation for the reasons urged by him is wholly untenable and opposed to the factual position and, therefore, we reject the same. 5. The second contention of Shri Trivedi was that the penalties imposed on all the 3 appellants were Rs. 1 lakh, Rs. 50,000/-, Rs. 50,000/-and Rs. 50,000/-. But then the Board had passed an order directing each of the appellants to deposit Rs. 10,000/-, without considering the financial capacities of the applicants. Shri Trivedi contended that the direction to deposit identical, amounts indicates the non-applicability of the mind of the Board. 6. There is no force in the above contention. Before fixing the amounts to be deposited the Board had heard the learned advocate who appears for all the appellants. From the Board's order it appears that the learned advocate pleaded that the appellants would be put to undue hardship if the penalties were required to be deposited in full, as they were of poor means. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication Order dated 6.3.1976. The said para reads "in the course of enquiries, the customs officers seized an Ambassador car No. GTG 7456, some contraband goods valued at Rs. 2360/- and certain documents which indicated transactions in smuggled goods to the tune of Rs. 14 lakhs on the part of Babubhai Gandhi alias Namdar. A separate case has been made out for this seizure and show cause notice has been issued to the concerned persons under No. VIII/10-12/Collr/74 dated 14.2.1974". 8. We have also perused two show cause notices issued to the appellant Shri B. A. Gandhi. We are satisfied that they related to two different offences. The first show cause notice related to the seizure of contraband goods from a truck. The second show cause notice related to some contraband goods other than the goods which was the subject matter of the earlier show cause notice and also to transactions "in smuggled goods to the tune of Rs. 14 lakhs and the subsequent show cause notice has no relation to the offence alleged in the first show cause notice. Just because the same documents seized from the appellant were used in both the adjudication proceedings, it cannot be contended that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the four appeals for non-depositing the penalty amounts directed to be deposited. The Board did not call upon the appellants to deposit the entire penalty amounts. The Board before directing deposit had also given a personal hearing to the appellants and had heard their learned advocate. The Board further granted one month's time to make the deposit. Even though the Board in its Order dated 24.3.1981 stated that the appeals would be dismissed without further reference to the advocate or appellants for non-compliance. It did not do so. It is only when the Advocate wrote a Letter dated 6.4.1981 the Board passed the impugned order as the Board was satisfied that the appellants would not comply with the direction as to the deposit. The appellants were given sufficient time to make the deposit. They did not comply with the direction. If as contended by Shri Trivedi that the appellants were not in a position to deposit even Rs. 10,000/- ordered by the Board the proper course was to approach the Board for modification of its earlier order. They, however, did not make any further application nor did they seek extension of time to make the deposit. Shri Trivedi did not contend and also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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