AKBAR BADRUDDIN JIWANI Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal against the order passed by the Collector Customs, Bombay bearing No. S/26-223/89 Gr. I/ S/10-11/89 Gr. I, dated 24-4-1989.

(2.) Before going into the factual position of the case, certain facts connected with the hearing and disposal of the appeal by this Bench are required to be set out for purpose of record. The appellant filed a writ petition in the Hon'ble High Court of Bombay against the aforesaid order of the Collector. The Hon'ble High Court of Bombay in its order dated 12-5-1989 passed in W.P. No. 1398/1989 has observed that the questions involved are disputed questions of facts, which are difficult for the High Court to answer and the petitioner's remedy is by way of an appeal. The High Court further directed that the petitioner may be permitted to clear the goods on payment of redemption fine and full Bank guarantee for penalty amount. Subsequently, the High Court, on an appeal filed by the petitioner, before the Division Bench, dismissed the appeal observing that the petitioner would be at liberty to file a departmental appeal and the appeal may be disposed of not later than six weeks from the date of its presentation and in modification of the direction of the learned Single Judge, the Bench directed that the petitioner would be permitted to clear the goods on payment of redemption fine and furnishing bank guarantee for half of the penalty amount subject to further orders by the appellate Authority after disposal of the appeal. In pursuance of this order, the appellant herein presented an appeal with the stay petition, which was received by the registry of this Bench of the Tribunal 28-6-1989. The stay petition and the appeal were fixed for hearing on 10-7-89. On the stay petition of the appellant, this Bench observed that the High Court have already directed the appellant to furnish Bank Guarantee for 50% of the penalty amount, which has not been complied with. This Bench also did not accept the contention of the appellant that since the goods were not cleared they are not required to comply with the direction of the Hon'ble High Court for furnishing the Bank Guarantee towards half of the penalty amount. This Bench took the view that if the appellant did not choose to clear the goods, they were not required to pay only the redemption fine and a waiver of furnishing Bank Guarantee for the penalty amount as ordered by the Hon'ble High Court cannot be entertained unless it is specifically waived under the orders of the Hon'ble High Court. In the circumstances, this Bench directed the appellant to comply with the High Court's direction by furnishing the Bank guarantee towards 50% of the personal penalty. This order dated 10-7-1989 was complied with by the appellant only on 11-7-89. Thereafter, the appeal was fixed for hearing on merits on 21-7-89. At the request of the departmental representative who sought for engagement of the Sr. Counsel for defending the department's case a short adjournment was given and the case was taken up for hearing. Hearing continued for 3 days and finally concluded on 2-8-1989.

(3.) SHRI M.H. Merchant, the learned authorised representative on behalf of the appellant, after narrating the facts of the case, put forth his arguments on the basis of five propositions set out below :