- (1.) Civil Rule No. 60(W) of 1967 issued by this Court. In the matter of Article 226 of the Constitution of India. And in the matter of a Rule issued upon reading a petition of Chinoy Chablani and Co. and the affidavit of verification thereof, dated 23rd December, 1966 and the exhibits or annexures to the said petition and upon hearing Mr. D. Gupta, Advocate for the petitioner, calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not be issued directing the said opposite parties to recall, cancel and withdraw the orders dated 5th November, 1965 and 27th November, 1966 and to refrain and forbear from giving effect to the same as mentioned in the petition or why a writ in the nature of prohibition should not be issued prohibiting the opposite parties and their servants from giving effect to the orders as referred to in the petition or why a writ in the nature of Certiorari should not be issued cancelling, setting aside or quashing the impugned orders as aforesaid and they are further commanded at the hearing of the application to produce in Court or cause to be forwarded to the Registrar of this Court for being so produced all relevant records in connection with this case so that conscionable justice may be administered by quashing the same or making such other directions as to the Court seem fit and proper. '
(2.) And in the matter of an interim order of injunction restraining the respondents from taking any steps for the execution and enforcement of the said orders dated the 5th November, 1965 and 27th November, 1966 and/of from acting on the basis thereof in any manner whatsoever upon the petitioners furnishing security to the satisfaction of the Registrar, Appellate Side, High Court, Calcutta in the sum of Rs. 22,000 (Rupees twenty-two thousand only). The Registrar, Appellate Side, High Court will be at liberty to accept Bank Guarantee from a scheduled bank by way of security within three weeks from this date. The ad interim order is as limited for a period of three weeks from this date (i.e. from 10-1-1967). In default of furnishing the security within the time the interim order will stand vacated.
(3.) This Rule is directed against an appellate order passed by the Collector of Customs dated 27th October, 1966. By an order dated 5th November, 1965, the Assistant Collector of Customs imposed a penalty of Rs. 21,727-91 P. for short landing of some materials which arrived at the Calcutta Port on 22-4-1962. Being aggrieved by the said order, the petitioner preferred an appeal under section 128 of the Customs Act, 1962 . Under section 129 of the Act it is incumbent on the petitioner to deposit the amount of penalty imposed. It is stated that the respondents asked the petitioner to deposit the penalty but in spite of sufficient time given, the penalty was not deposited and as such the appeal was rejected for non-compliance with the provisions of section 129 of the Act. While preferring the appeal, the petitioner made an application before the Customs Authorities for exercising a discretion for dispensing with the deposit of penalty demanded under the order, appealed against. The petitioner made an application for stay of the realisation of demand under section 129 proviso. Section 129 reads as follows :- "129. Deposit, pending appeal, of duty demanded or penalty levied . (1) Where the decision or order 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 this Act, any person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty-demanded or the penalty levied: Provided that where in any particular case the appellate authority, is of opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may in its, discretion dispense with such deposit, either unconditionally or subject 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." Under the proviso, the appellate authority has a power to dispense with such deposit either unconditionally or with such condition as it deem fit if it is of the opinion that the deposit of duty demanded or penalty levied will cause undue hardship on the appellant.;