ORDER
K. Gopal Hegde, Members (J)
1. The revision applications filed before the Central Government against the common order bearing Nos. 306 to 309 of 1981, dated 29.6.1981 passed by the Central Board of Excise and Customs statutorily stood transferred to the Tribunal for being heard as appeals.
2. As these appeals involve common questions of law and fact, they were clubbed together; heard together and hence this common order.
3. Brief facts necessary for the disposal of these appeals are :
That the Collector of Customs and Central Excise, Ahmedabad, in his adjudication order dated 28.8.1980 besides ordering confiscation of stereo solid state compact cassette and 6 packages of safron made in Spain and motor car bearing No. GGJ 7486 also imposed a penalty of Rs. 1,00,000/- on the appellant Shri B. A. Gandhi, Rs. 50,000/- on the appellant Shri Subhas Madhubhai Mehta, Rs. 50,000/- on Kirit M. Mehta and Rs. 50,000/- on Shri Suresh M. Mehta.
Feeling aggrieved by the order passed by the Collector, all the four appellants herein filed appeals before the Central Board of Excise and Customs. The Board clubbed all the 4 appeals and passed the impugned order. The operative part of the Board’s order reads : “The Advocate, Shri J.M. Majumdar, for all the four appellants was heard at Bombay on 24.3.1981 on the preliminary point regarding the waiver of the requirement of the pre-deposit of the penalty amounts. After hearing him, the Board in exercise of the discretion vested in it by the proviso to Sub-section (1) of Section 129 of the Customs Act, 1962, had directed that all the four appellants should deposit a sum of Rs. 10,000/- each as part payment towards the penalty imposed on each and produce proof of having done so before the Board on or before 20.4.1981. It was also made clear to the Advocate that if this was not done, the appeals would be dismissed without further reference either to him or to his clients for non-compliance with the provisions of the said Sub-section (1) of Section 129 of the Customs Act, 1962.
The appellants did not pre-deposit the amount of Rs. 10,000/- each as directed by the Board. ‘
The appellants’ advocate has written a letter dated 6.4.1981 stating, inter alia, that none of his 4 clients (the appellants) is in a position to pre-deposit even the sum of Rs. 10,000/-.
The Board finds that the letter dated the 6th April, 1981 from the appellants’ advocate makes no difference to the decision taken earlier by the Board regarding the pre-deposit of the part penalty amounts. The fact remains that despite sufficient time and opportunity afforded for the purpose, the appellants have failed to comply with the provisions of Sub-section (1) of Section 129 of the Customs Act, 1962.
In the circumstances, the Board rejects all the four appeals for the appellants’ failure to comply with the provisions of subsection (1) of Section 129 of the Customs Act, 1962.”
4. Shri Trivedi appearing for the appellants challenged the above order of the Board on the following grounds : Firstly, the direction issued by the Board to deposit Rs. 10,000/- each is not capable of compliance. He urged that the order as to the deposit of Rs. 10,000/- each was made on 24.3.1981, whereas the direction was to deposit the amount on or before 20.3.1981.
5. Before referring to other contentions of Shri Trivedi, we would like to dispose of this contention. Shri Trivedi is taking advantage of an typographical error in the date. If the order of the Board read as a whole, as has been rightly contended by Shri Senthivel, the learned SDR, it would be clear that the time granted for deposit was not 20.3.1981 ; but 20.4.1981. The order dated 24.3.1981 was dictated in the presence of the appellants’ advocate. Therefore, the Board observed, no separate communication in the matter is necessary. The Board also directed that an extra copy of the order should be given to the advocate to enable him to deposit the partial amount of penalty. The personal hearing was also fixed on 24.3.1981. The appellants’ advocate was present during the hearing. The fourth para of the order dated 24.3.1981 fixes the next date of hearing which is in the month of April and that was between 24th and 27th. The matter was made further clear by the final order passed by the Board which we had extracted above. In the final order the Board had culled out its order dated 24.3.1981. The portion culled out clearly shows that the appellants herein were granted time till 20.4.1981 to make the deposit. In the circumstances the contention of Shri Trivedi that the Board’s order is not capable of implementation for the reasons urged by him is wholly untenable and opposed to the factual position and, therefore, we reject the same.
5. The second contention of Shri Trivedi was that the penalties imposed on all the 3 appellants were Rs. 1 lakh, Rs. 50,000/-, Rs. 50,000/-and Rs. 50,000/-. But then the Board had passed an order directing each of the appellants to deposit Rs. 10,000/-, without considering the financial capacities of the applicants. Shri Trivedi contended that the direction to deposit identical amounts indicates the non-applicability of the mind of the Board.
6. There is no force in the above contention. Before fixing the amounts to be deposited the Board had heard the learned advocate who appears for all the appellants. From the Board’s order it appears that the learned advocate pleaded that the appellants would be put to undue hardship if the penalties were required to be deposited in full, as they were of poor means. The Board in its discretion accepted the above contention and did not direct to deposit the full penalty amounts but only directed to deposit Rs. 10,000/- each. The appellants herein have not chosen to produce before us the applications filed before the Board for dispensing with the pre-deposit of the penalty amounts. There is also no evidence before us as to the exact financial position of the appellants at the relevant time. Looking to the quantum of the amount directed to be deposited, it cannot be said that the Board did not apply its mind or that the amount directed to be deposited was unreasonable or harsh. We, therefore, reject this contention of Shri Trivedi.
7. The third contention of Shri Trivedi was that the appellant Shri B.A. Gandhi was punished twice for the same offence. Therefore, the order dated 28.8.1980 is a nullity. When the order is a nullity, the appellate authority, namely, the Board could not direct to deposit any amounts towards the penalty. If the original order is a nullity, the appellate order is also a nullity and on this ground the appeal of Shri B. A. Gandhi is required to be allowed. Elaborating his contention Shri Trivedi submitted that in respect of certain incriminating documents seized from his residence a show cause notice dated 2.1.1974 was issued to the appellant calling upon him to show cause as to why penalty should not be imposed and why the goods, seized from the truck CTZ 8891 valued at Rs. 8,73,694/- should not be confiscated. Shri Trivedi submitted that in pursuance of the said show cause notice an adjudication order dated 6.3.1976 was passed by the Collector of Customs and Central Excise, Ahmedabad, imposing a penalty of Rs. 15,000/- on the appellant Shri B.A. Gandhi. The department in respect of the very documents issued another show cause notice dated 14.2.1974. In pursuance of the said show cause notice a penalty of Rs. 1 lakh had been imposed. Thus, in respect of the same offence the appellant had been punished twice and as such the second order by which the collector imposed a penalty of Rs. 1 lakh is an invalid order and, therefore, the Board could not have directed to deposit any amount towards the penalty amount on an invalid order. Shri Senthivel appearing for the collector however submitted that two show cause notices related to two different offences and in that connection he referred to para 6 of the adjudication order dated 6.3.1976. The said para reads “in the course of enquiries, the customs officers seized an Ambassador car No. GTG 7456, some contraband goods valued at Rs. 2360/- and certain documents which indicated transactions in smuggled goods to the tune of Rs. 14 lakhs on the part of Babubhai Gandhi alias Namdar. A separate case has been made out for this seizure and show cause notice has been issued to the concerned persons under No. VIII/10-12/Collr/74 dated 14.2.1974”.
8. We have also perused two show cause notices issued to the appellant Shri B. A. Gandhi. We are satisfied that they related to two different offences. The first show cause notice related to the seizure of contraband goods from a truck. The second show cause notice related to some contraband goods other than the goods which was the subject matter of the earlier show cause notice and also to transactions in smuggled goods to the tune of Rs. 14 lakhs and the subsequent show cause notice has no relation to the offence alleged in the first show cause notice. Just because the same documents seized from the appellant were used in both the adjudication proceedings, it cannot be contended that the appellant Shri B. A. Gandhi was penalised twice for the same offence. We, therefore, reject Shri Trivedi’s contention that the adjudication order dated 28.8.1980 is a nullity on the ground that by which order a second punishment was awarded to appellant Shri B. A. Gandhi for the same offence in respect of which an earlier punishment had been awarded.
9. Fourthly Shri Trivedi contended that according to the second show cause notice the value of the goods seized was Rs. 2360/- and under law the penalty cannot exceed five times of the value of the goods. But then the Collector had imposed a penalty of Rs. 1 lakh and, therefore, the order on the face of it is bad in law. As such the Board could not have directed the appellant to deposit any amount. This submission of Shri Trivedi is also not tenable. In the order dated 28.8.1980 the Collector had recorded a finding that the appellant Shri B. A. Gandhi had contravened Section 111(d), 111(p) and the value of the goods in one case in respect of which there had been violation of Customs Act was Rs. 17,950/-. The Collector’s order also shows another contravention by the appellant in respect of goods valued at Rs. 7,060/- and certain other amounts. Therefore, the contention of Shri Trivedi that the penalty amounts exceeds five times of the value of the goods in respect of which offences had been committed is factually incorrect. We, therefore, reject this contention also.
10. Shri Trivedi finally contended that there was no evidence against the appellant Suresh and the conclusion of guilt was arrived at only on the ground that Suresh was the brother-in-law and as such the Board ought not to have directed Shri Suresh to deposit any amount. Shri Trivedi also contended that the adjudicating authority placed reliance on the statements of the appellant Shri B. A. Gandhi and wrongly concluded that the statements contain admission of guilty but in fact the statements did not contain any admission. We have pointed out to Shri Trivedi that in the appeals which are under consideration, we are considering the question as to the correctness or otherwise of the order passed by the Board and not with regard to the merits. Shri Trivedi pleaded that in view of scanty evidence the ends of justice require that the Tribunal should also hear the appeals on merits.
11. The order impugned is the order passed by the Board. The Board had rejected all the four appeals for non-depositing the penalty amounts directed to be deposited. The Board did not call upon the appellants to deposit the entire penalty amounts. The Board before directing deposit had also given a personal hearing to the appellants and had heard their learned advocate. The Board further granted one month’s time to make the deposit. Even though the Board in its order dated 24.3.1981 stated that the appeals would be dismissed without further reference to the advocate or appellants for non-compliance. It did not do so. It is only when the Advocate wrote a letter dated 6.4.1981 the Board passed the impugned order as the Board was satisfied that the appellants would not comply with the direction as to the deposit. The appellants were given sufficient time to make the deposit. They did not comply with the direction. If as contended by Shri Trivedi that the appellants were not in a position to deposit even Rs. 10,000/- ordered by the Board the proper course was to approach the Board for modification of its earlier order. They, however, did not make any further application nor did they seek extension of time to make the deposit. Shri Trivedi did not contend and also could not contend that the Board had no jurisdiction to direct pre-deposit. Section 129 of the Customs Act as it then stood required the appellants to deposit the penalty and duty before their appeals could be heard. The said section vested discretion in the appellate authority to dispense with pre-deposit on the ground of undue hardship. On consideration of the Board’s order, we are satisfied that it does not suffer from any infirmity, either procedural or legal. The discretion exercised by the Board cannot be considered as orbitrary or capricious or unjust. Therefore, we see no reason to interfere with the Board’s order. In the circumstances, we see no merit in the contention of Shri Trivedi that the appeals of the appellants should be heard on merit.
12. On consideration of all the aspects, we see no merit in these appeals. Accordingly, we reject these appeals.
13. Before parting with these cases, we would like to place on record another submission of Shri Trivedi which has no relevance to the merits of the appeals. Shri Trivedi has urged that after the disposal of the appeals by the Board, the department took steps to recover the penalty amounts and, therefore, appellant Shri B. A. Gandhi approached the High Court and the High Court directed him to furnish a security of Rs. 75,000/- and also directed him to file a stay application before the Tribunal and accordingly appellant Babulal A. Gandhi made a stay application which was rejected by the Tribunal on 2.1.1985. We have perused our order, dated 2.1.1985. We had observed in that order that question of pre-deposit does not arise in the appeal. Since the applicant did not prosecute the application, the same was rejected. Our observation regarding pre-deposit has relation to the revision application filed before the Central Government which stood transferred to the Tribunal. Under the Customs Act, as it then stood, the revision application was not required to make deposit of duty or penalty before the Central Government. It was the revision application that had been transferred to the Tribunal (though they have to be heard as appeals) and, therefore, we made an observation that question of pre-deposit would not arise in the proceedings. The above observation has nothing to do with the merits of the appeals filed by the appellants.