JUDGMENT Prakash Krishna, J.
1. By this writ petition under Article 226 of the Constitution of India the petitioner has sought a writ order or direction in the nature of Certiorari quashing the impugned order dated 14th July, 2000/21st July, 2000 (Annexure No. 6) passed by the respondent No. 1 in appeal No. 376/99 and has also prayed a writ of Mandamus commanding the respondent No. 1 to hear and decide the appeal of the petitioner on merit who is insisting to deposit the amount as directed in the impugned order.
2. According to the petitioner he let out the property situate at Pony Road, Brahma Nagar, Jhandewala Chauraha, Shuklaganj, Unnao to one Shri Ram Avtar Singh on rent who was carrying some illegal activities from the premises in question. A team of the Custom Officials on 18.12.1992 seized certain silver from the possession of Shri R.A. Singhal in a Maruti Van and Gypsy. Notice under the provisions of Customs Act was issued to the petitioner and other persons. The Commissioner (Central Excise), Kanpur by the order dt. 4th August 1999 ordered for absolute confiscation of 79 silver bricks, weighing 2,640.227 kgs. and imposed a penalty of Rs. 2.5 crores on the petitioner. Penalty was also imposed upon other person. The petitioner filed an appeal against the aforesaid order under Section 129A of Customs Actbefore the Appellate Tribunal. Section 129A provides besides other things deposit of penalty levied. Proviso to Section 129E gives power to appellate Tribunal to waive the duty and interest demanded on penalty levied if it is satisfied that the deposit of duty and interest demanded on penalty would cause undue hardship to such person. The petitioner filed an application before the Tribunal. In the appeal for waiver of penalty to the tune of Rs. 2.5 crores on the allegation that the petitioner is a Doodhwala and has no financial capacity to deposit the amount. I have gone through the said application. A copy of which has been filed as Annexure No. 4 to the writ petition. In para-5 of the said application it is mentioned that he is not having any movable and immovable property except an ancestral property in which he is as co-owner. The monthly income of the petitioner is about Rs. 3,000 and he is not having any bank account. The Tribunal by the impugned order has granted partial waiver and directed the petitioner to deposit Rs. 25 lacs. Aggrieved against the aforesaid order the present writ petition has been filed.
3. Heard Shri Pankaj Bhatia in support of petition and Shri Vikram Gulati, the learned standing counsel for the department. It was submitted by Shri Bhatia that the order of the Tribunal is not based on relevant considerations. In contra, Shri Vikram Gulati submitted that the petitioner was master mind behind the smuggling activities and does not deserve any sympathy of the Court.
4. I have considered the respective submissions of the counsel for the parties and also gone through the order of the Tribunal. The order of the Tribunal is a detailed order and it contains 10 paragraphs. Upto paragraph No. 6 the Tribunal has given the history of the case. In paragraph No. 7 which is relevant paragraph for the consideration the Tribunal has said that looking to the recovery of silver worth Rs. 2.4 crores the explanation of financial position submitted by the petitioner is not convincing. Proviso to Section 125-E is relevant to decide the present controversy. A reading of the said proviso shows that for decision of waiver application the relevation (sic) consideration is cause of undue harship to the appellant. Unfortunately in the detailed order of the Tribunal there is no such finding. The dispute on merits shall be heard and decided in appeal. Undoubtedly the finding of the Commissioner is against the petitioner wherein it has been found that the petitioner was the master mind person behind the smuggling activities. I am not making any comments on the merits of the case but a close reading of the Order of the Tribunal shows that it has mis-directed itself. Shri Vikram Gulati tried to support the order with reference to the order passed by the Commissioner. The averment of the petitioner that he has no bank accounts or has no immovable property except the ancestral property in which he is co-sharer has not been disputed or denied by any authority at any stage. The said fact has not been even disputed in the counter affidavit filed to the writ petition. For the decision of the waiver application the authority should have considered as to whether the appellant is in a position to pay or deposit the duty and interest demanded on the penalty levied. In my view since non-grant of waiver will make the appeal ineffective, the Tribunal should be very careful in rejecting the waiver application. Right of appeal is a substantive statutory right circumstancialised by the condition of deposit of the disputed amount of tax etc. Reliance was placed upon a Division Bench Judgment of this Court in the case of M.C. Goel v. Union of India, 1988(35) ELT 449. In the paragraph No. 6 of the aforesaid judgment the law has been clarified. Reliance was placed on few other judgments by Shri Pankaj Bhatia. All those judgments need not be referred to in view of the fact that Shri Bhatia made concession on behalf of the petitioner that the petitioner is prepared to deposit Rs. 50,000 within a period of one month from today in addition to Rs. 15,000 already deposited. This concession has not been seriously disputed by the learned Standing Counsel. He only submitted that since a huge revenue is involved the appeal should be heard and disposed of expeditiously. Anxiety of both the counsel is that the appeal may be heard and decided on merits as soon as possible. Considering the totality of the facts and circumstances of the case the order dated 14th July, 2000/21st July, 2000 is modified so far as it relates to the petitioner to this extent that if the petitioner deposits a sum of Rs. 50,000 within one month from today the appeal filed by him shall be heard and disposed of by the Tribunal without insisting the payment of the remaining amount during the pendency of the appeal. With these observations the writ petition is disposed of.
5. In case at any stage the Tribunal comes to the conclusion that the appellant is unnecessarily delaying the hearing of the appeal and is not cooperating in its disposal it shall be open to the Tribunal to pass appropriate orders in accordance with law without being influenced by any of the observations made in this order.