Hon'ble Judges/Coram:
N.P. Singh and K. Venkataswami

ORDER

1. This appeal has been filed on behalf of the Union of India against the judgment of a Full Bench of Delhi High Court holding that an oral hearing had to be given to the respondent by the Appellate authority before taking a decision under third proviso to Sub-section (1) of Section 4-M of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as the 'Act'). On the aforesaid finding the writ petition filed on behalf of the respondent was allowed and the order passed by the Appellate authority was quashed. A direction was given to afford an opportunity to the said respondent to be heard on the question as to whether the appeal filed on behalf of the respondent should be entertained without deposit of the penalty imposed.

2. The respondent obtained an advanced licence for import of brass scrap on certain conditions, under the Duty Exemption Scheme. The said licence was issued subject to the respondent's exporting 78 MT Brass Artware for approximate FOB value of Rs. 14,00,420. A show cause notice was issued to the respondent under Section 4-M of the said Act on basis of the report of investigation. Ultimately a penalty of Rs. 6 lakhs was imposed against the said respondent. An appeal was filed on behalf of the respondent along with an application for dispensing with the pre-deposit. By a communication dated 18.2.1993 issued on behalf of the Appellate authority, the respondent was directed to deposit 25% of the penalty amount or bank guarantee for the same amount. The validity of this communication was questioned before the High Court saying that before rejecting the prayer made on behalf of the respondent to dispense with the whole amount of penalty an opportunity should have been given to the said respondent of being heard in terms of the proviso to Section 4-M of the Act. Section 4-M of the Act provides :

(1) Any person aggrieved by any decision or order made under this Act may prefer an appeal, -

(a) where the decision or order has been made by the Chief Controller or Additional Chief Controller, to the Central Government;

(b) Where the decision or order has been made by any officer below the rank of the Additional Chief Controller, to the Chief Controller or where he so directs, to the Additional Chief Controller,

within a period of forty-five days from the date on which the order is served on such person :

Provided that the Appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the aforesaid period of forty-five days, allow such appeal to be preferred within a further period of forty-five days:

Provided further that in the case of an appeal against an order imposing a penalty, no such appeal shall be entertained unless the amount of the penalty has been deposited by the appellant:

Provided also that, where the Appellate authority is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, at its discretion, dispense with such deposit either unconditionally or