ORDER
M. Gouri Shankar Murthy, Member (J)
1. This is a Revision application against the order of the Appellate Collector of Customs, New Delhi, transferred to the Tribunal pursuant to Section 131B of the Customs Act, 1962 and heard by us as an appeal accordingly.
2. It would appear that an order confiscating two gold biscuits, alleged to have been seized from the Appellant, under Section 111 of the Customs Act and levying a personal penalty of Rs. 500/- in terms of Section 112 of the Act had been made by the Adjudicating Officer on or about 20th May, 1978 in this case. The Appellant preferred an appeal to the Appellate Collector and, admittedly, prayed for dispensing with the mandatory requirement in Section 129 of the Customs Act, 1962, of prior deposit of the penalty in a sum of Rs 500/- in the grounds of appeal itself.
3. The Appellate Collector, however, dismissed the appeal for failure to deposit the penalty in terms of Section 129 of the Customs Act, 1962, after a notice that was issued to the Appellant, was received back undelivered.
4. The Appellant had preferred the instant Revision petition and had also, as submitted by the learned counsel for the Appellant, deposited the penalty.
5. Clause (1) of Section 129 of the Customs Act, 1962 (now repealed and re-enacted as Section 129E), read as follows :
“129. Deposit, pending appeal, of duty demanded or penalty levied.-
(1) Where the decision or order appealed against relates to any duty deirianded 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.”
6. A perusal of the aforesaid Section would reveal that where a prayer has been made for dispensing with the deposit pending the appeal, it has to be heard and decided one way or another. It does not appear that the Appellate Collector had decided the issue relating to prior ‘deposit at all but proceeded to dismiss the appeal itself for failure to deposit the penalty pending the hearing thereof.
7. In the facts and circumstances of the case, now that the deposit has been made, we set-aside the Appellate Collector’s order dated 30-10-78 and remand the matter for a fresh disposal on merits by the Appellate Collector, after due notice to the Appellant, within two months from the date of communication of this orders
8. Order accordingly.