Prakash Krishna, J. - (1.) By this writ petition under Article 226 of the Constitution of India the petitioner has sought a writ order or direction in the nature of Certiorari quashing the impugned order dated 14th July, 2000/21st July, 2000 (Annexure No. 6) passed by the respondent No. 1 in appeal No. 376/99 and has also prayed a writ of Mandamus commanding the respondent No. 1 to hear and decide the appeal of the petitioner on merit who is insisting to deposit the amount as directed in the impugned order.
(2.) According to the petitioner he let out the property situate at Pony Road, Brahma Nagar, Jhandewala Chauraha, Shuklaganj, Unnao to one Shri Ram Avtar Singh on rent who was carrying some illegal activities from the premises in question. A team of the Custom Officials on 18.12.1992 seized certain silver from the possession of Shri R.A. Singhal in a Maruti Van and Gypsy. Notice under the provisions of Customs Act was issued to the petitioner and other persons. The Commissioner (Central Excise), Kanpur by the order dt. 4th August 1999 ordered for absolute confiscation of 79 silver bricks, weighing 2,640.227 kgs. and imposed a penalty of Rs. 2.5 crores on the petitioner. Penalty was also imposed upon other person. The petitioner filed an appeal against the aforesaid order under Section 129-A of Customs Actbefore the Appellate Tribunal. Section 129-A provides besides other things deposit of penalty levied. Proviso to Section 129-E gives power to appellate Tribunal to waive the duty and interest demanded on penalty levied if it is satisfied that the deposit of duty and interest demanded on penalty would cause undue hardship to such person. The petitioner filed an application before the Tribunal. In the appeal for waiver of penalty to the tune of Rs. 2.5 crores on the allegation that the petitioner is a Doodhwala and has no financial capacity to deposit the amount. I have gone through the said application. A copy of which has been filed as Annexure No. 4 to the writ petition. In para-5 of the said application it is mentioned that he is not having any movable and immovable property except an ancestral property in which he is as co-owner. The monthly income of the petitioner is about Rs. 3,000 and he is not having any bank account. The Tribunal by the impugned order has granted partial waiver and directed the petitioner to deposit Rs. 25 lacs. Aggrieved against the aforesaid order the present writ petition has been filed.
(3.) Heard Shri Pankaj Bhatia in support of petition and Shri Vikram Gulati, the learned standing counsel for the department. It was submitted by Shri Bhatia that the order of the Tribunal is not based on relevant considerations. In contra, Shri Vikram Gulati submitted that the petitioner was master mind behind the smuggling activities and does not deserve any sympathy of the Court.;