TMI Blog1973 (1) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded against the petitioner for the offence of `Under-invoicing' and unauthorised importation of the consignments. After giving opportunity to the petitioner, the Collector of Customs found the petitioner guilty of the offence under Section 167, clause (8) of the Sea Customs Act, 1878 read with Section 3 of the Imports and Exports (Control) Act, 1947. An aggregate amount of Rs. 3,23,800 as personal penalty was levied. Being aggrieved by the order, the petitioner filed appeals 201 to 206/64 before the Central Board of Excise and Customs. He did not pay the penalty but, pleaded his inability to pay. By a letter dated 11-6-1964, the petitioner was informed that the Board would consider all the appeals provided the petitioner deposited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 129(1) makes it obligatory on the person filing an appeal to deposit the duty demanded or penalty levied when the order or decision appealed against relates to any duty demanded in respect of goods which are not under the control of Customs Authorities or any penalty levied under the Act. The proviso gives power to the appellate authority in particular cases to dispense with such deposit either unconditionally or subject to such conditions, as it may deem fit, when it is of the opinion that the deposit of duty demanded or penalty levied will cause hardship to the appellant. The contention of Mr. Srinivasan related to the manner of exercising the discretion under the said Section. He said that if the appellate authority is of the opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively he was given the choice to deposit the full amount of penalty levied in any one of the five cases. As per this order, he could have deposited Rs. 12,100/- which was the penalty imposed in one of the orders under appeal and proceeded with the appeal, keeping the other appeals pending. He failed to avail himself of that concession. Consequently, the appeals were dismissed. In our opinion, the appellate authority has properly exercised its discretion under Section 129 and, it was not incumbent upon it to dispense with the requirement of the entire deposit. It could take into consideration all the circumstances of the case and the means of the appellant and pass an order either dispensing with the deposit of the entire disputed amount or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, permission or exemption granted or any assessment made, confiscation adjudged or any duty levied or any penalty or fine imposed or any forfeiture, cancellation or discharge of any bond ordered or any other thing done or any other action taken under any repealed enactment shall, so far as it is not inconsistent be deemed to have been done or taken under the corresponding provisions of this Act. * * * * * * * (4) The Act shall apply to all goods which are subject to the control of customs at the commencement of this Act notwithstanding that the goods were imported before such commencement. * * * * * * * (8) The mention of particular matters in sub-sections (4), (5), (6) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the commencement of the said Act. But sub-section (4) of Section 160 is subject to the applicability of Section 6 of the General Clauses Act, 1897. As the penalty provided for the offence under Section 112(b)(ii) of the 1962 Act is different from that provided by the provisions of Section 167(8) of the Sea Customs Act, 1878, the proceeding commenced against the petitioner under the Sea Customs Act, 1878, must be allowed to continue by the application of Section 6 of the General Clauses Act. In that view, the impugned order of penalty was perfectly legal. Even otherwise the original and the appellate authorities under both the said Acts being the same and the petitioner having had the benefit of the lesser penalty by the original au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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