1. This is an appeal filed under Section 129-A of the Customs Act by Shri Ratilal Devabhai Navik against the Order No. DRI/BZU/1I0-1NV-4/81 dated 31.1.82 of the Addl. Collector of Customs, Bombay imposing on him a penalty of Rs. 20,00j/- under Section 112 of the Customs Act, 1 62, The appellant's Advocate has argued that there was no evidence with the Addl. Collector of Customs to link up Shri R.D. Navik with 500 tolas of gold seized on 25.9,81 from Shri Rajendra Hiralal Yagnik. Even when Shri .H. Yagnik had stated that some of the documents recovered from him were in the handwriting of Shri R.D Navik, no attempts has been made to confront Shri Navik with these documents and it had been wrongly presumed by the Add]. Collector that the accounts represented the sale of smuggled gold and other goods. The Advocate has stated that the penal proceedings under the Customs Act are quasi-criminal proceedings and he has relied in this behalf on the Supreme Court's judgment vide A.I.R. 1961 S.C. 264 in the case of Ambulal v. Union of India. He has also referred to the judgment of the Madras High Court 1978 T.L.P. to show that the degree of proof required in a criminal case under the Customs Act should be of exact mature. In brief, the Advocate for the appellant has submitted that no evidence is available to establish the connection of the appellant with the seizure of 500 tolas of gold. He has, therefore, prayed that the order of the Add).
Collector of Customs, Bombay, imposing penalty of Rs. 20,000,'- on Shri R.D. Navik be set aside. On enquiry he has stated that the penalty has not been paid so far. The departmental representative has submitted that since the penalty has not been paid, the appeal should be dismissed for non-compliance with provisions of Section 129-E of the Customs Act. As regards the Advocate's plea of lack of evidence to connect Shri R.D. Navik with the seized gold and the recovery of documents from Shri R.H. Yagnik, the departmental representative has referred exhaustively to the findings of the Addl. Collector of Customs in his order and pointed out that the pleas of the Advocate are not tenable. He has also clarified that as per the provisions of Section 153 of the Customs Act, the show cause notice should have been deemed as served and therefore, there was no non-compliance with principles of natural justice. In reply, the Advocate for the appellant has submitted that since the appeal has been heard, the same may kindly be decided on merits and it should not be dismissed for non-compliance with the requirement of depositing the amount of penalty.
2. We have considered the submissions on both the sides. We find that a clear directive was given in our Order on Stay Petition No. 23/82 dated 31.1.83 for depositing the amount of penalty of Rs. 20,000/- by 28.2 83. But the penalty has not been paid as confirmed by the Advocate.
Since the stay petition was rejected, we see no justification in the Advocate's plea that the appeal be decided on merits. A compliance with his request to decide the appeal on merits can only encourage the appellants to defy compliance with the provisions of Section 129-E of the Customs Act. We arc afraid, we cannot be instrumental to such defiance of law. In the aforesaid circumstances, we see no justification in discussing and deciding the merits of the appeal. The appeal is accordingly dismissed for non-compliance with the provisions of Section 129-E of the Customs Act.