Decided on August 19,1975

Deechand Sarda Appellant
UNION OF INDIA (UOI) Respondents


- (1.) BY this application under Article 226 of the Constitution of India the petitioner has challenged the order dated 25 -7 -70 passed by the Appellate Collector of Customs and the order dated 7 -12 -1972 passed by the Government of India in revision application under the Customs Act, 1962.
(2.) , The petitioner is a cloth Merchant having his business under the name and style of "M/s, Sardar and Co." situated at Silchar town. The Customs Preventive Officers seized five pieces of cloth measuring 23.05 metres under Case No. 17/CL/Imp/Prev./Sil/69, dated 9 -6 -69, vide T.R.S. No. 25 of Book No. 349, dated 9 -6 -69 and Inventory dated 9 -6 -69. The petitioner challenged that seizure and also by a statement dated 9 -6 -69 ex - plained to the Customs Preventive Officer the licit sources and the character of these goods. The petitioner was served by the Assistant Collector, Customs, with a show cause notice, being C. No. 50/CL/Sil/Cus/69/9299, dated 14/15 -7 -69 on the charges mentioned in the show cause memo and he was asked to show cause against the charges mentioned therein. The petitioner showed cause by his petition dated 24 -7 -69. By adjudication Order No. Div/S/Sil/1581/Cus/69, dated 10 -10 -69 the Assistant Collector, Customs rejected the explanation of the petitioner and confiscated the seized cloth in question under Section 111(P) of the Customs (Amendment) Act, 1969 and made the confiscation absolute in terms of Section 125(1) of Customs Act, 1962, and also imposed a penalty of Rs. 1,000/ - on the petitioner under Section 112 of the Customs Act, 1962 and thereafter the petitioner preferred an appeal on 15 -2 -72 against the order of absolute confiscation and imposition of personal penalty passed by the Assistant Collector of Customs and Central Excise, Silchar before the Appellate Collector of Customs, Calcutta. As it appears the case was fixed for hearing on 25 -7 -70. The appellant - petitioner made a prayer before the Appellate Collector, however, rejected that prayer and at the same time rejected the appeal itself for non -compliance with the provisions of Section 129(1) of the Customs Act, 1962. A revision application was filed against this order before the Government of India and that application was also rejected. Hence this writ petition against the aforesaid two impugned orders.
(3.) WE have heard the learned counsel of. both the parties. The point that arises for consideration is whether an appeal under Section 128 read with Section 129 of the Customs Act, 1962 is at all entertainablc without deposit of the penalty levied and if entertainable whether the appeal may be heard without deposit of the penalty levied ? Sections 128 and 129 of the Customs Act, 1962 are quoted below : -;

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