Decided on November 14,1996



Vinod Kumar Gupta, J. - (1.)Against an order passed by the respondent No. 1 the petitioners preferred an appeal before the respondent No. 3. Since the order appealed against by the petitioners before respondent No. 3 included the levy of penalty against them, in the appeal preferred by them they made an application under Section 129E of the Customs Act, 1962 for dispensing with the requirement of pre-deposit of the penalty amount levied by the respondent No. 1. By an order passed on 25-7-1996 the respondent No. 3 while partly allowing the prayer of the petitioners for dispensing with the requirement of the deposit of the penalty amount directed them to deposit only 25% of the penalty amount within a period of three months from the date of passing of the order. The petitioners feel aggrieved of this direction and have accordingly challenged the order before this Court.
(2.)After hearing the learned Counsel of both the parties and perusing the record, I find that under Section 129E of the Customs Act, 1962, the pre-deposit of the penalty amount is a mandatory requirement for filing an appeal by a person aggrieved of an order passed by a Commissioner of Customs. The pre-deposit of the penalty amount is a Rule. This stay is an exception. It is only if the Tribunal is of the opinion that the deposit of penalty levied would cause undue hardship to a person, it may dispense with such deposit on such conditions as it may deem fit to impose to safe-guard the interests of Revenue. By a mere cursory look at the proviso to Section 129E of the Act. I find that the power to dispense with the requirement of pre-deposit is a discretionary power vested in the Tribunal, and depending upon the facts and circumstances of the case, the Tribunal is vested with a discretion to either refuse the stay of deposit altogether or to dispense with the deposit, either wholly or partly, depending upon such terms and conditions as it may impose or such situation as may be warranted under the circumstances of the case. I find that by passing a detailed speaking order, the Tribunal has exercised its discretion in favour of the petitioners by permitting them to deposit only 25% of the penalty amount. It was open to the Tribunal to have refused the stay of deposit altogether. I have no reasons to take a different view. There is no ground for interfering with the discretionary exercise of the power by the Tribunal.
(3.)Before parting, it may be observed that in this petition the limited question involved was with regard to the deposit or the stay of deposit of the penalty amount. No part of this judgment shall be construed as any expression of opinion by this Court about the merits of the controversy between the parties before the Tribunal. This petition is dismissed without any order of costs.

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