TMI Blog1971 (1) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... in limine Civil Writ No. 666-D of 1966 filed by the appellant to quash the orders of the first and second respondents dated December 7, 1965 and April 23, 1966 respectively. 2. The main question that arises for consideration in this appeal is whether the order of the first respondent, Central Board of Excise and Customs, New Delhi, rejecting the appeal filed by the appellant for non-compliance with the provisions of Section 129 of the Customs Act, 1962 (Act 52 of 1962) (hereinafter to be referred as the Act) was justified. The point lies within a very narrow compass and hence it is not necessary to state elaborately the allegations made against the appellant for taking action under the Act read with the material provisions of the Imports and Exports Control Act, 1947. The appellant was called upon by the third respondent, Collector of Customs and Excise, Cochin, to show cause why he should not be penalised under Section 112(b) of the Act and why he should not be prosecuted under Section 135(b) of the Act. Similarly another notice was issued against one Rodrigues, with whom we are not concerned in these proceedings. The appellant made representations against the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 10,000/- out of the total penalty levied was deposited. The appellant was informed on August 17, 1965 about this requirement by registered letter and was called upon to deposit the same within 14 days. As the registered letter was returned unserved, a communication was sent to the appellant's lawyer, who was on record and it was acknowledged on October 18, 1965. But as the amount of Rs. 10,000/- was not deposited, the appeal was rejected for non-compliance with the provisions of Section 129 of the Act. 5. The appellant carried the matter in revision before the second respondent under Section 130 of the Act. The appellant was given a further opportunity by the second respondent to deposit the sum of Rupees 10,000/- as required by the first respondent. As the appellant again failed to avail himself of this opportunity, the second respondent by its order dated April 23, 1966 rejected the revision petition holding that the matter cannot be considered on merits and that the Government of India saw no reason to interfere with the decision of the Central Board of Excise and Customs. The writ petition filed by the appellant to quash the orders of the first and second respondents w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only Section 22(1) as it stood on the date of filing of the return that applied and not the amended Section. 11. In Himmatlal Harilal Mehta v. The State of Madhya Pradesh, 1954 SCR 1122 = AIR 1954 SC 403 the question related to the right of a party to approach the High Court under Article 226 of the Constitution without availing himself of the other remedies provided under the Central Provinces and Berar Sales Tax Act, 1947. This Court held that by the mere fact that a remedy was available under the said Act, an assessee was not disentitled to relief under Article 226 when he comes with an allegation that his fundamental right is sought to be infringed. 12. In Collector of Customs Excise, Cochin v. A.S. Bava, (1968) 1 SCR 82 = 1978 (2) E.L.T. (J 333) - AIR 1968 SC 13 the point that arose for consideration was whether Section 129 of the Act governed an appeal filed under the Central Excises and Salt Act, 1944, by virtue of the notification dated May 4, 1963 issued by the Central Government under Section 12 of the said Act. This Court held that Section 129 of the Act was not attracted. 13. None of the above decisions have any bearing on the contentions raised by Mr. Trivedi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such conditions as it may deem fit. (2) If upon any such appeal it is decided that the whole or any portion of such duty or penalty was not leviable, the proper officer shall return to the appellant such amount of duty or penalty as was not leviable." 15. From the provisions extracted above it is to be seen that Section 128 gives a right of appeal against the decision or order passed by the authorities mentioned therein. It also specifies the authorities to whom and the period within which the appeal is to be filed. The proviso to sub-Section (1) of Section 128 gives power to the Appellate Authority on sufficient cause being shown to extend the period for filing the appeal by a further period not exceeding three months. Sub-Section (2) provides for an opportunity being given to the appellant to be heard, if he so desires, and the Appellate Authorities passing such orders by way of confirming, modifying or annulling the decision or order appealed against, subject to two provisos contained therein. Section 129 (1) makes it obligatory on the person filing an appeal to deposit, pending the appeal, with the proper officer the duty demanded or penalty levied where the order or dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority to either waive the deposit of the entire amount of penalty or duty or reduce the quantum to be so deposited if the appellate authority is of the opinion that the requirement regarding the deposit of the full amount of penalty or duty will cause undue hardship to an appellant. 17. We have already pointed out that the appellant did make a request to the first respondent to exempt him from the requirement regarding the deposit of the penalty levied against him. The grounds pleaded by him in this behalf were that he was innocent and that it was not possible for him to deposit the penalty amount the appellant was heard initially on his request for exempting him from depositing the penalty and having regard to the representation made by him, the first respondent reduced the amount of penalty to be deposited to Rs. 10,000/- that is half the amount of penalty levied by the Collector. The appellant did not comply with this requirement and therefore his appeal was rejected for non-compliance with the provisions of Section 129(1). The appellant availed himself of his right to challenge this order in revision under Section 130 of the Act, before the second respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
