# Ashish Kumar Chaurasia v. The Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi and another

- **Citation:** (2003) 3 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-14
- **Case number:** Civil Misc. Writ Petition No. 1000 of 2000
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-chaurasia-v-the-customs-excise-gold-control-appellate-tribunal-new-40203
- **Pages:** 4

## Headnote

Customs Act S.-129- wiver ApplicationConfiscation of 79 silver bricks worth of
Rs. 2.5 crores-against demand of Penalty
wiver application filed-on the ground
except
ancestral
property-No
bank
account or immovable Property-rejection
by
tribunal
held-not
proper-tribunal
directed to decide the controversy-if the
amount of Rs.50,000/-deposited within
one month-without insisting to deposit
the further amount.

Held- Para 4

For the decision of the waiver application
the authority should have considered as
to whether the appellant is in a position
to pay or deposit the duty and interest
demanded on the penalty levied. In my
view since non grant of waiver will make
the
appeal ineffective,
the Tribunal
should be very careful in rejecting the
waiver application. Right of appeal is a
substantive
statutory
right
circumstancealised by the condition of
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798 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
deposit of the disputed amount of tax
etc.
Case law discussed:
1988 (35) ELT 445

## Text

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3 All] A.K. Chaurasia V. The Customs, Excise & Gold (Control) Tribunal and another
797
11. In our opinion no sympathy can
be shown to a person like the petitioner
who has illegally remained in possession
after 31.5.2001.

12. Writ jurisdiction is equity
jurisdiction and we are not inclined to
exercise our discretion under Article 226
of the Constitution of India in favour of a
person like the petitioner who has
illegally remained in possession of the
accommodation in question and has
abused the sympathy shown to him. In our
opinion the petitioner was only a licence
of the premises in question, and a licence
can be terminated at any time vide
Section 60, of the Easements Act.

13. In view of the above, this writ
petition is dismissed.

14. The S.S.P. Kanpur Nagar is
directed to evict the petitioner from the
accommodation in question within 10
days from today. The learned counsel for
the petitioners will serve copy of this
judgment on the SSP Kanpur Nagar at the
earliest who will ensure strict compliance
of this order.

15. The petitioner must also pay
damages of Rs. 12,000/- per month from
31.5.2001 till the date of vacation of the
accommodation, and this amount must be
paid by the petitioner to the BIC within
two months from today. If he does not
pay the said amount, it will be realized
from the petitioner as arrears of land
revenue by the District Magistrate,
Kanpur Nagar.

16. Let copy of this judgment be
given to the learned counsel for the
respondents by 10.7.2003 on payment of
usual charges. The Registrar General of
this Court will send copy of this judgment
forthwith to the D.M. Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2003

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 1000 of 2000

Ashish Kumar Chaurasia
...Petitioner
Versus
The Customs, Excise & Gold (Control)
Appellate
Tribunal,
New
Delhi
and
another

 ...Respondents

Counsel for the Petitioner:
Sri S.P. Gupta
Sri Pankaj Bhatia

Counsel for the Respondents:
Sri Vikram Gulati, S.C.
Sri S.N. Srivastava, S.S.C.

Customs Act S.-129- wiver ApplicationConfiscation of 79 silver bricks worth of
Rs. 2.5 crores-against demand of Penalty
wiver application filed-on the ground
except
ancestral
property-No
bank
account or immovable Property-rejection
by
tribunal
held-not
proper-tribunal
directed to decide the controversy-if the
amount of Rs.50,000/-deposited within
one month-without insisting to deposit
the further amount.

Held- Para 4

For the decision of the waiver application
the authority should have considered as
to whether the appellant is in a position
to pay or deposit the duty and interest
demanded on the penalty levied. In my
view since non grant of waiver will make
the
appeal ineffective,
the Tribunal
should be very careful in rejecting the
waiver application. Right of appeal is a
substantive
statutory
right
circumstancealised by the condition of
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798 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
deposit of the disputed amount of tax
etc.
Case law discussed:
1988 (35) ELT 445

(Delivered by Hon'ble Prakash Krishna, J.)

1. By this writ petition under Article
226 of the Constitution of India the
petitioner has sought a writ, order or
direction in the nature of Certiorari
quashing the impugned order dated 14th
July, 2000/21st July, 2000 (Annexure No.
6) passed by the respondent No. 1 in
appeal No. 376/99 and has also prayed a
writ of Mandamus commanding the
respondent No.1 to hear and decide the
appeal of the petitioner on merit who is
insisting to deposit the amount as directed
in the impugned order.

2. According to the petitioner he let
out the property situate at Pony Road,
Brahma Nagar, Jhandewala Chauraha,
Shuklaganj, Unnao to one Shri Ram Autar
Singh on rent who was carrying some
illegal activities from the premises in
question. A team of the Custom Officials
on 18.12.1992 seized certain silver from
the possession of Shri R.A. Singhal in a
Maruti Van and Gypsy. Notice under the
provisions of Customs Act was issued to
the petitioner and other persons. The
Commissioner (Central Excise) Kanpur
by the order dt. 4th August, 1999 ordered
for absolute confiscation of 79 silver
bricks, weighing 2,640.227 Kgs. And
imposed a penalty of Rs.2.5 crores on the
petitioner. Penalty was also imposed upon
other person. The petitioner filed an
appeal against the aforesaid order under
Section 129 A of Customs Act before the
Appellate
Tribunal.
Section
129
A
provides besides other things deposit of
penalty levied. Proviso to section 129 E
gives power to appellate Tribunal to
waive the duty and interest demanded on
penalty levied if it is satisfied that the
deposit of duty and interest demanded on
penalty would cause undue hardship to
such person. The petitioner filed an
application before the Tribunal. In the
appeal for waiver of penalty to the tune of
Rs. 2.5 crores on the allegation that the
petitioner is a Doodh wala and has no
financial capacity to deposit the amount. I
have gone through the said application. A
copy of which has been filed as Annexure
No. 4 to the writ petition. In para-5 of the
said application it is mentioned that he is
not having any movable and immovable
property except an ancestral property in
which he is as co owner. The monthly
income
of
the
petitioner
is
about
Rs.3,000/- and he is not having any bank
account. The Tribunal by the impugned
order has granted partial waiver and
directed the petitioner to deposit Rs. .25
lacs. Aggrieved against the aforesaid
order the present writ petition has been
filed.

3. Heard Shri Pankaj Bhatia in
support of petition and Shri Vikram
Gulati, the learned standing counsel for
the department. It was submitted by Shri
Bhatia that the order of the Tribunal is not
based on relevant considerations. In
contra Shri Vikram Gulati submitted that
the petitioner was master mind behind the
smuggling activities and does not deserve
any sympathy of the Court.

4. I have considered the respective
submissions of the counsel for the parties
and also gone through the order of the
Tribunal. The order of the Tribunal is a
detailed
order
and
it
contains
10
paragraphs. Up to paragraph No. 6 the
Tribunal has given the history of the case.
In paragraph No. 7 which is relevant
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3 All] A.K. Chaurasia V. The Customs, Excise & Gold (Control) Tribunal and another
799
paragraph for the consideration the
Tribunal has said that looking to the
recovery of silver worth Rs.2.4 crores the
explanation
of
financial
position
submitted by the petitioner is not
convincing. Proviso to Section 125 E is
relevant to decide the present controversy.
A reading of the said proviso shows that
for decision of waiver application the
relevation consideration is cause of undue
hardship to the appellant. Unfortunately in
the detailed order of the Tribunal there is
no such finding. The dispute on merits
shall be heard and decided in appeal.
Undoubtedly
the
finding
of
the
Commissioner is against the petitioner
wherein it has been found that the
petitioner was the master mind person
behind the smuggling activities. I am not
making any comments on the merits of
the case but a close reading of the order of
the Tribunal shows that it has misdirected itself. Shri Vikram Gulati tried to
support the order with reference to the
order passed by the Commissioner. The
averment of the petitioner that he has no
bank accounts or has no immovable
property except the ancestral property in
which he is co sharer has not been
disputed or denied by any authority at any
stage. The said fact has not been even
disputed in the counter affidavit filed to
the writ petition. For the decision of the
waiver application the authority should
have considered as to whether the
appellant is in a position to pay or deposit
the duty and interest demanded on the
penalty levied. In my view since non
grant of waiver will make the appeal
ineffective, the Tribunal should be very
careful in rejecting the waiver application.
Right of appeal is a substantive statutory
right circumstancealised by the condition
of deposit of the disputed amount of tax
etc. Reliance was placed upon a Division
Bench Judgment of this Court in the case
of M.C. Goel Vs. Union of India, 1988
(Volume-35) E.L.T. 445. In the paragraph
No. 6 of the aforesaid judgment the law
has been clarified. Reliance was placed on
few other judgments by Shri Pankaj
Bhatia. All those judgments need not be
referred to in view of the fact that Shri
Bhatia made concession on behalf of the
petitioner that the petitioner is prepared to
deposit Rs.50,000/- within a period of one
month
from
today
in
addition
to
Rs.15,000/-
already
deposited.
This
concession
has
not
been
seriously
disputed
by
the
Learned
Standing
Counsel. He only submitted that since a
huge revenue is involved the appeal
should
be
heard
and
disposed
of
expeditiously. Anxiety of both the counsel
is that the appeal may be heard and
decided on merits as soon as possible.
Considering the totality of the facts and
circumstances of the case the order dated
14th July, 2000/21st July, 2000 is modified
so far as it relates to the petitioner to this
extent that if the petitioner deposits a sum
of Rs.50,000/- within one month from
today the appeal filed by him shall be
heard and disposed of by the Tribunal
without insisting the payment of the
remaining amount during the pendency of
the appeal. With these observations the
writ petition is disposed of.

5. In case at any stage the Tribunal
comes to the conclusion that the appellant
is unnecessarily delaying the hearing of
the appeal and is not cooperating in its
disposal it shall be open to the Tribunal to
pass appropriate orders in accordance
with law without being influenced by any
of the observations made in this order.
---------
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800 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.7.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 21398 of 1997

Dhan Pal Jain

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri R.K. Jain
Sri R.K. Awasthi

Counsel for the Respondents:
Sri S.S. Sharma
Sri Raj Kumar
S.C.

A) Arms Act Section 14 (3)-Grant of
Arms dealer Licence-State Government
Refused to grant Licence-No reason
recorded-
Held-
Reason
must
be
recorded as per section 14 (3) of the ActImpugned order quashed-

Held- Para 5

Case law:-
AIR 1967 S.C. 829
AIR 1998 S.C. 2779
AIR 1985 S.C. 1118

B) Constitution of India-Article 226-
grant of Fire Arms licence-whether the
Court can itself deal with the grant of
licence-Held, No Article 226 can not
assume the function of the licensing
authorities-matter remanded back to
licencing authority to decide accordance
with law-

Held- Para 6

This Court in exercise of power under
Article 226 of the Constitution of India
cannot assume the function of the
licensing authority for grant or refusal of
the arms licence.

(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard Sri Ravi Kiran Jain,
learned senior counsel appearing on
behalf of the petitioner and learned
Standing Counsel for the Respondents.

2. By means of present writ petition
under Article 226 of the Constitution of
India, the petitioner has challenged the
impugned order dated 19th June, 1997,
whereby the State Government has
refused to grant arms dealer's licence to
the petitioner under Form No. XI, copy
whereof is annexed as Annexure '1' to the
writ petition.

3. Learned counsel for the petitioner
Sri Jain argued that considering the facts
and circumstances of the case that the
petitioner has already possessed of a
licence under the Arms Act and is running
his business in the name and style of M/s
Cheap Gun House since 1972. He further
stated that the aforesaid arms dealer
licence is in Form 13, therefore there is no
justification for the State Government to
refuse the permission of grant of licence
to the petitioner which, according to Shri
Jain, is contrary to the provisions of
Section 14 of the Arms Act. Shri Jain
further submitted that in view of Subsection (3) of Section 14 of the Arms Act
while refusing to grant of licence, the
licensing authority is under the legal
obligation to record reasons for the same.
Sub-Section (3) of Section 14 of the Arms
Act is quoted below:

"Refusal of Licences

(1) ...............