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Petition No. 680 of 1966, decided on 30th January 1974.

Rr. 144(1)(c), 210 & 215 read with Central Excises and Salt Act (I of 1944), S. 3 and Sea Customs Act (VIII of 1878), S. 189 Penalty imposed for contravention of Rules ‑ Appeal before Collector of Customs‑Collector summarily disposing of appeal on sole ground that appellant had failed to deposit the amount of penalty Held, payment of penalty could not be condition precedent to hearing of appeal.

From rule 215 of the Central Excise Rules, 1944 it is clear that the procedure of section 189 of the Sea Customs Act is applicable only with regard to the duties which are imposed and not with regard to the penalties. Although the term "duty" has not been defined by any of the Enactment or Rules but it is plain enough that this would not include penalty which has been imposed for non‑compliance with the Rules. The terms "duty" and "penalty" must be given their ordinary dictionary meaning. It is further clear that rule 225 attracts the provisions of section 189, Sea Customs Act in regard to the procedure relating to offences in respect of duties imposed on goods and not in regard to the procedure relating to the violation of the Rules. Consequently rule 215 has no application where penalty is imposed for contravention of the Rules.

Section 189 of the Sea Customs Act, can be invoked only when the decision or order appealed against relates to any duty or penalty leviable in respect of any goods. Again this refer to the goods and not to the violation of the Rules. Furthermore, in this section the terms duty and penalty have been separately used. The duty cannot be said to include penalty but the two terms are distinct from each other and, therefore, rule 215 cannot be extended in order to be applicable in case of penalty which has been imposed, specially for violation of the Rules.

Under rule 215 of the Central Excise Rules, 1944, the provision of section 189 of the Sea Customs Act, 1878 had been made applicable only to those appeals which related to offences arising out of duties imposed under section 3 of the Central Excises and Salt Act. 1944. Thus it is plain enough that neither rule 215 of the Central Excise Rules nor section 189 of the Sea Customs Act is applicable to the penalties imposed against violation of the Rules.

The dismissal of the appeal by the Collector Customs on sole ground of non‑deposit of the penalty imposed by the Assistant Collector would without jurisdiction and without lawful authority.

Messrs Eastern Rice Syndicate and another v. Central Board of Revenue P L D 1959 S C (Pak.) 364 and Ghafoor Textile v. Collector of Central Excise and Land Customs, Karachi P L D 1966 Kar. 531 ref.

S. Sami Ahmad for Petitioner.

Muzaffar Hussain for Respondent.

Date of hearing : 30th January 1974.

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