TMI Blog1993 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal and also filed a petition for Stay. The Tribunal found that prima facie, a case is not made out and considering the facts and circumstances of the case, the Tribunal directed the petitioner to pre-deposit on or before 30th November, 1992 and subject to which pre-deposit of the balance amounts by the petitioner would stand disposed with pending appeal. The petitioner alleges in the affidavit that he was falsely implicated in a Customs offence in which gold bars were recovered on 1-3-1989. It seems gunny bags containing gold bars were found in the petitioner's house. It is also stated in the affidavit that in his absence the same had been kept in the house, and that he had known and that if he had information that the gunny bags contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India and that the order passed by the Tribunal is illegal in so far it demands the petitioner to pay the penalty. It is also stated that Section 129E of the Customs Act, cannot be interpreted as a bar to entertain an appeal. With these allegations, the petitioner is before me. 3. Mr. B. Kumar, the learned counsel appearing for the petitioner reiterates the contentions raised in the affidavit filed in support of the writ petition and states that the condition under Section 129E of the Customs Act can be imposed only when the appeal is ripe for hearing and that the condition cannot be imposed even without entertaining the appeal. According to the learned counsel, first of all the appeal should be entertained and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel appearing for the petitioner that Section 129E of the Customs Act gives a right to the petitioner to file an appeal to the Tribunal. In my view, it is not an absolute right, nor an ingredient of natural justice. In my view, it is only a statutory right and can be circumscribed by the conditions. In fact the Supreme Court had occasion to consider the right under Sections 129 and 129D of the Customs Act in Associated Traders v. Collector of Customs 1988 (36) E.L.T. 719] wherein the Supreme Court has held that it is only a statutory right and it can be circumscribed by the conditions in the grant. 6. The case relied on by the learned counsel for the petitioner in Shri Shyam Kishore and Others v. Municipal Corporation of Delhi a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Vijay Prakash and Jawahar v. Collector of Customs (Preventive), Bombay (AIR 1988 S.C. 2010) has held as follows: "....The right of appeal contemplated under Section 129A and Section 129E is a conditional one and the legislature in its wisdom has imposed that condition of depositing duty demanded or penalty levied. Although S. 129E does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to. deposit the duty or penalty pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129E of the Customs Act and the right of appeal, I do not think the contentions of Mr. B. Kumar the learned counsel for the petitioner can be countenanced. I do not think the decision of the Supreme Court which interpreted the provisions under the Delhi Municipal Corporation Act, alters the position. I do not think that the earlier view has been overruled by the latter decision. The latter decision turns upon construction of particular section with which the Supreme Court was concerned. Nor I am satisfied that the contention that Section 129E of the Customs Act is not applicable to the facts of the case on hand. It is an order of imposing penalty and as such penalty has to be paid by the petitioner and simply because the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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