Judgment
1. Shri Gopal Prasad, ld. Counsel arguing the application for restoration of the appeal No. C/56/99-NB filed by the Shri Harbans Singh submits that on the date of reporting compliance, the Counsel for the applicant had requested for adjournment of the case. He submits that before that date, the applicant had already filed an application for modification of stay order. He submits that this modification application was not considered and the appeal was dismissed for non-compliance. He submits that since the modification application was filed before the date of reporting compliance the modification application should have been considered before dismissing the appeal for non-compliance. He therefore prays that the appeal may be restored and the modification application may be considered.2. Shri R.D. Negi, Ld. DR submits that in the application for adjournment, there was no mention made that the applicant had already requested for modification of the stay order. He submits that the Misc.
application was not placed before the Bench when the matter came up for reporting compliance on 6-1-2000. He submits that in this view of the matter, the appeal has rightly been dismissed.
3. We note in the instant case compliance was to be reported on 6-1-2000. We further note that the modification application was received on 27-12-99. It was numbered but registry failed to put up the modification application before the Bench and the Bench passed the order in the absence of the modification application.
4. Since there was modification application for modifying the stay order filed before the date of compliance, we find that the dismissal of the appeal for non-compliance was not warranted. In the circumstances, the appeal is restored to its original number.
5. Arguing the modification application, ld. Counsel submits that the applicant is a very poor man and has no resources to make the payment.
Ld. Counsel submits that the applicant has no assets to make any payment. He submits that the applicant has no role at all inasmuch as on the panchnama drawn on 13-9-96 there is no mention of appellant's name; that his name come in picture only on 14-9-96. He therefore prays that since the role of Harbans Singh has not been clearly brought out in the smuggling activity, the stay order may be modified and pre-deposit of penalty may be waived.
6. Shri R.D. Negi, ld. SDR submits that these points now being reiterated have been taken into consideration at the time of passing the detailed order on the stay petition filed earlier. He submits that nothing new has been brought our. Ld. DR submits that since the applicant did not comply with the stay order by depositing the amount on or before 27-12-99, therefore the applicant shall have to deposit the entire amount of penalty adjudged in the adjudication order and only perhaps then his case may be considered for crossing the hurdle of pre-deposit of penalty under Section 129E of the Customs Act, 1962.
7. We have heard the submissions of both the sides. We note that at the time of hearing the stay petition, all these issues were raised by the Counsel of the applicant and were considered. Only detailed examination of the documents was not possible since it is not a pre-condition for deciding of a stay petition. At the time of hearing the stay petition it is only prima facie consideration of the facts of the case and coming to a conclusion that whether pre-deposit is necessary and if yes, to what extent. We note that in the instant case all the points raised at the time of hearing of the stay petition were considered.
There is nothing new brought out now in the modification application.
Therefore the modification application is rejected. Since the applicant had not deposited the amount on or before 27-12-99, therefore in case any request is made for restoration of the appeal and hearing of appeal, it must be supported by pre-deposit of the entire amount of penalty adjudged in the adjudication order. The applicant in the interest of justice is given two months' time from today to deposit the entire amount of penalty on or before 19-9-2000 and to report compliance on 26-9-2000.