ORDER M.C. Agarwal, J.
1. Heard Sri Ashok Trivedi, learned Counsel for the petitioner and Sri Surya Prakash, learned Standing Counsel for the respondent.
2. This writ petition under Article 226 of the Constitution of India is directed against an interim order dated 3-11-1998 passed by the Commissioner, Customs & Central Excise (Appeals), Allahabad whereby in exercise of the powers under the proviso to Section 35F of the Central Excise Act and the powers of stay, he directed the petitioner to deposit the adjudicated dues i.e. a penalty of Rs. 20,000/- within 15 days and rejected the petitioner's request for staying the auction of the confiscated goods.
3. The petitioner imported zinc dross described by it as shelf which was freely importable without any licence. The case of the Custom authorities, who physically verified the goods, is that the imported goods were not zinc dross known as shelf but they were in the shape of power and flakes of zinc dross not falling within the category of shelf and, therefore, an import licence was required and since the import was made without any licence the goods were liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Section 11(1) of Foreign Trade Development and Regulation Act, 1962. Proceedings were, therefore, initiated in that direction and by an order dated 9-9-1998 the Deputy Commissioner (Customs) and Central Excise, Kanpur-I passed an order confiscating zinc dross weighing 42,081 kgs worth Rs. 9,44,744/- under Section 111(d) of the Customs Act, 1962. He allowed the petitioner's option of redeeming the goods on payment of a fine of Rs. 2,50,000/-. He also imposed a penalty of Rs. 20,000/- under Section 112 of the Customs Act on the petitioner. It is against this order that the petitioner has preferred an appeal before the Commissioner (Appeals) which is pending and in which the impugned order was passed. The petitioner filed the present writ petition and by an interim order dated 18-12-1998 it was ordered that in case the petitioner deposits Rs. 20,000/- by 26th December, 1998 towards the disputed penalty, the confiscated goods i.e. zinc dross will not be disposed of during the pendency of this writ petition or appeal pending before the Commissioner, Customs and Central Excise (Appeals), Allahabad whichever is disposed of earlier.
4. A counter affidavit has been filed and at the hearing of the matter today I am informed that the appeal before the Commissioner is still pending.
5. As regards the provision of Section 35F of the Central Excise Act the same stand complied with as the petitioner has deposited the sum of Rs. 20,000/- vide challan in the State Bank of India on 26th December, 1998. The original challan was shown to me at the hearing. Therefore, the appeal has to be entertained.
6. As regards the auction of the confiscated goods, there is absolutely no justification for auctioning the goods once an appeal is pending. It is not shown that the commodity in question is a perishable item and its disposal without delay is in the interest of the parties. No other cause is also shown in the counter affidavit which may justify the disposal of the goods in spite of the pendency of the appeal. Therefore, this writ petition is allowed and it is ordered that the aforesaid goods will not be sold or otherwise disposed of by the respondents till the disposal of the appeal by the Commissioner.