(1.) BY this petition challenge is made to an order Annexure P/1 dated 26-11-2001 by which an appeal filed by the petitioner under the provisions of the Customs and Central Excise Act has been dismissed by the Appellate Tribunal only on the ground that the petitioner has not complied with the provisions of Section 129e of the Customs Act. It is the case of the petitioner that being aggrieved by certain order passed by the authorities concerned, petitioner had preferred an appeal before the respondent No. 2 [customs, Excise and Gold (Control) Appellate Tribunal, New Delhi] and the Tribunal by its order directed the petitioner to deposit a sum of Rs. 25 lacs towards duty within twelve weeks. Since petitioner did not comply with the aforesaid order of stay granted by the Tribunal, the appeal was dismissed by the Tribunal. Thereafter another application was filed and the stay was withdrawn, thereafter appeal was again listed for orders and on 30-8-2001 petitioner was again directed to deposit a sum of Rs. 20 lacs within eight weeks. Vide Misc. Order No. 77/2001-D dated 5-11-2001 the application for modifying the stay order was rejected and the petitioner was directed to deposit the amount by 17-11-2001 and report compliance on 19-11-2001. It is seen that matter was taken up on 19-11-2001. Clerk of the petitioners counsel produced a medical certificate requesting for adjournment of the case, however, for non-compliance with the provision of Section 129e of the Customs Act, 1962 with regard to deposit of the amount. The appeal itself was rejected. Shri P. M. Kaul, learned Counsel made two fold submission, it was submitted by him that before directing for deposit of amount the Tribunal is duty bound to consider the financial condition and hardship if any of the petitioner and without considering the same, no direction for pre-deposit can be made. The second submission was that even if the direction for pre-deposit was not complied with, that would not entitle dismissal of appeal itself. The appeal is to be heard on merits and decided. Merely non-compliance with the direction for deposit dismissal of appeal is not warranted. In support of his contention he places reliance on the following judgments :m. I. Metal Sections Pvt. Ltd. v. Collector of C. Excise, Bangalore, 1995 (75) E. L. T. 470 (Kar.) B. D. Steel and Traders v. Union of India, 1998 (103) E. L. T. 218 (Bom.).

(2.) REFUTING the aforesaid Shri T. C. Singhal, learned Counsel submitted that the petitioner in the present case was afforded repeated opportunities to deposit the amount in these circumstances the Tribunal was fully justified in dismissing the appeal. In that view of the matter no case for interference is made out.

(3.) HAVING considered the rival submission and on appreciation of the legal principles that emerges on a reading of the judgments referred to herein-above, it is clear that when the petitioner had a statutory right of filing appeal before the Tribunal and in exercise thereof appeal was filed, petitioner had a right of hearing and the petition has to be heard and decided on merit until and unless the Tribunal found that the appellant was not appearing and arguing the matter deliberately dismissal of appeal mechanically by order simpliciter by direction is not justified. Even if the petitioner does not comply with the direction for deposit of the amount the only consequence thereof would have been rejection of the prayer made for interim relief on stay and to direct for recovery of amount in accordance with law. Dismissing the appeal merely on the ground that direction of pre-deposit having been fulfilled is not proper. That apart, the direction for pre-deposit has to be considered in the back drop of the financial hardship if any of the appellant.

(4.) CONSIDERING the totality of the facts and circumstances of the case and on due appreciation of enunciation of law as laid down in the judgment referred to I am of the considered view that rejection of the appeal on the ground stated in Ann. P/1 is not proper.

(5.) ACCORDINGLY, the petition is allowed. Order Annexure-P/1 dated 26-11-2001 passed by the Tribunal is quashed. The learned Tribunal is directed to reconsider the matter in accordance with law and proceed to dispose of the appeal on merits.

(6.) PETITION stands disposed of with the aforesaid direction.