ORDER
1. This is a Revision Application by M/s Subhash Embroidory Works which has been transferred to the Tribunal for disposal as an appeal under the provisions of Section 131 B(2) of the Customs Act, 1962.
2. Sarees and fabrics valued at about Rs. 32,000 were recovered from the business and residential premises of the appellant on 30-4-74. The case was adjudicated by the Deputy Collector of Customs and Central Excise, Chandigarh, on 2-11-77 and the goods were absolutely confiscated Under Section 111 of the Customs Act, 1962 and a penalty of Rs. 50,000 was also imposed on the appellant Under Section 112. The appeal was rejected by the Appellate Collector, New Delhi, in his order dated 1-9-81, for non-compliance with Section 129 of the Customs Act, by failure to deposit 50% of the penalty, as required in his letter dated 2-5-80. This Revision Application has been filed against this Order.
3. The Counsel for the appellant submitted that on 30-1-78 a letter was sent to the Appellate Collector regarding the deposit of penalty, pending hearing of his appeal, also filed on 20-1-78. It was stated that he did not possess the resources to pay the heavy amount of penalty and had supported it by affidavit. An undated letter was received from the Appellate Collector in June, 1980 rejecting the application and directing that 50% of the penalty should be paid, failing which the appeal shall be rejected. On 19-6-80 the appellants submitted that they were already under heavy debt and it would not be possible for them to collect the amount of Rs. 25,000/- and pay the penalty”. They also desired ;to be heard before deciding the appeal. However, on 1-9-81 the order appealed against was passed, rejecting the appeal for non-compliance. Counsel submitted that the appeal was filed under old Section 128 and Section 129 of the Customs Act does not deny the right of being heard in connection with the deposit of penalty. The purpose of imposing a penalty is not extortion and the ability to pay as well as the reasonableness of the penalty are important considerations. There has been no contradiction by the Department regarding the proof of the appellants’ financial status filed before the Appellate Collector. There is deprivation of the right of appeal if an unreasonably high penalty is imposed and the appeal is dismissed for non-deposit. The order of the Appellate Collector, submitted the Counsel is, therefore, improper. The last ground made out by the Counsel was that the order is a non-speaking order.
4. The Senior Departmental Representative submitted that the original records not being available, he would not be able to controvert the facts submitted by the Counsel regarding asking and granting of a personal hearing. The order gives the ground of non-compliance with the provisions of Section 129 and is, therefore, a speaking order.
5. The proviso to Sub-rule* (1) of Rule* 129 confer on the appellate authority the discretion to dispense with the deposit of the penalty, if it is of the opinion that such deposit will cause undue hardship to the appellant. The use of the words ‘opinion’ and discretion’ introduce an element of subjective satisfaction. This could be either on the basis of his own enquiries instituted through departmental channels or on grounds furnished by the appellant. It cannot be said that a personal hearing is mandatory before coming to an opinion. In this case, the fact that the deposit asked was only 50% of the penalty shows that the orders was not arbitrary. It is also not known whether any enquiry into the financial standing was independently made. However, when the appellant produced evidence of financial inability and asked for a hearing, it would be reasonable for grounds to be given why such evidence was not wholly acceptable or why a personal hearing was not considered necessary. In this sense, the order cannot be said to be a speaking order.
6. In the present appeal, considering the value of the goods, as distinct from the market value, the penalty is rather high and there appears to be some force in the appellants’ plea that it should not be extortionate.
7. The Tribunal is not in favour of itself going into the merits of the case. But in the interests of justice, the case is remitted back to the Appellate Collector with the direction that he should grant a hearing to the appellant on the matter of deposit and dispose of the appeal in accordance with law.
