1. The prayer in this petition is for the stay of the operation of the order passed by the Gold Control Administrator which required the appellants to pay redemption fine of Rs. 25,000/- and a penalty of Rs. 2,00,000/-. The petition is filed on behalf of M/s. Meena Jewellery.
The petitioners stated in the petition that they are not in a position to pay Rs. 2,25,000/- even if they dispose of their entire stock held by them and the property both movable and immovable and that considerable hardship would be caused to them if the operation of the order is not stayed. Shri A.K. Saha, S.D.R. opposed this petition.
2. Shri A.B. Chatterjee, Consultant who appeared for the petitioner reiterated what have been stated in the petition. He pleaded that the operation of the order may be stayed in the interest of justice.
3. From the order of the Gold Control Administrator we find that the appellants have been called upon to pay redemption fine of Rs. 25,000/- and a penalty of Rs. 2,00,000/-. As far as redemption fine is concerned, Act does not make it obligatory for the appellants to deposit the same. When the Act does not require the appellants to deposit the redemption fine in order to consider their appeal, normally the party aggrieved need not seek stay of that part of the order but in the instant case the Gold Control Administrator has passed an order that the confiscation becomes absolute if redemption fine is not paid within 3 months. Apparently because of such an order the appellants have come up with, the prayer for stay of the entire order. Shri Saha for the Department vehemently contended that the Tribunal has no power to stay the order relating to redemption fine. This contention in our opinion is not sound. As has been pointed out earlier when the Act does not make it obligatory for the party to deposit the redemption fine, the question of seeking stay or praying for grant of stay strictly, does not arise. It is now well settled that the Appellate Authority has an inherent power to grant stay of the operation of the order appealed against. Now if we do not grant stay of that part of the order by which the Gold Control Administrator has directed the appellants to pay the fine within 3 months failing which the confiscation becomes absolute, the appeal itself will become infructuous in so far as that part of the order is concerned. Even if the appellants succeed in the appeal they may not get back the confiscated gold by reason of the confiscation becoming absolute on account of nonpayment of redemption fine. The ends of justice require that that part of the order should be stayed pending consideration of the appeal and accordingly we direct stay of that part of the order unconditionally. We say it is unconditional because the goods are with the Department and in the event of the Appellant not succeeding in the appeal the interest of the revenue will in no way be effected.
4. Now coming to the penalty it is certainly harsh to call upon the appellants to deposit. The statement made by the Appellants in their petition supported by the sworn affidavit that it would be impossible for them to deposit the amount of penalty even if they dispose of all their assets, has not been challenged. That right of a appeal is a substantive right. Such right should not be bogged down or taken away by imposing condition which the party can not comply with. But then the Tribunal cannot ignore their interests of the revenue altogether. Some safeguard shall have to be provided for as to the recovery of penalty in the event of the petitioners/appellants failing in their appeal.
5. Considering the undue hardship that would cause to the petitioner and taking into account the interest of revenue we feel it reasonable to call upon the appellants to furnish bank guarantee for a sum of Rs. 1 lakh and execute a bond with solvent surety for the remaining sum of Rs. 1 lakh.
6. For the reason we allow the application and direct stay of recovery Of penalty of Rs. 2 lakhs on the appellants furnishing a bank guarantee for a slim of Rs. 1 lakh and execute a bond with solvent surety for the remaining sqm of Rs. 1 lakh within four week from the date of communication of this order to the satisfaction of the adjudicating authority.