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5. 189-Deposit of penalty-Amount of penalty being not deposited-Petitioner's appeal against imposition of penalty dismissed by Central Board of Revenue without hearing on merits-Government of Pakistan also dismissing revision without going into merits for non-compliance of orders regarding penalty-Counsel for respondent agreeing to appeal being heard on merits by Central Board of Revenue on petitioner furnishing security for penalty amount to satisfaction of Collector of Customs--Course adopted by counsel, held, proper and meets ends of justice.

Zaheeruddin Ahmed for Petitioner.

h. A. Ghani for Respondents.

Date of hearing : 14th January 1980.

ABDUL HAFEEZ MEMON, J.-The facts of this petition are that, by his order dated 7-5-1966, the Collector of Customs imposed a penalty of Rs. 81,000 on the petitioner on the ground that the machinery imported by the petitioner against the licences dated 13-12-1965 and 21-12-1965 did not fall within the description of textile printing machinery for which he had been granted the licences. Being aggrieved, the petitioner filed appeal before the Central Board of Revenue. As however, he did not deposit amount of penalty imposed on him which was a condition precedent under section 189 of the Sea Customs Act, 1878, the Central Board of Revenue dismissed the petitioner's appeal by its order dated 28-3-1968 for the said reason, without hearing it on merits. The petitioner thereafter filed a revision before the Government of Pakistan who by its order dated 19-0-1969 remanded the matter to the Central Board of Revenue. for hearing the appeal on the condition of petitioner depositing 50 % of the penalty amount in cash and furnishing bank guarantee for the balance. The petitioner, however, found it hard to deposit the amount and furnish bank guarantee for the balance and, accordingly, requested that, instead, he may be permitted to furnish security for the said penalty amount by mortgaging his property which was valued at Rs. 80,000. The Government of Pakistan, however, passed an order on 30-3-1972, whereby they rejected the request of the petitioner and dismissed the revision for his failure to comply with its order, without going into merits. It is thereafter that the present petition was filed by the petitioner.

The petition was admitted on 2-8-1972 and the petitioner was granted stay of the realisation of the penalty amount on his furnishing security in the sum of Rs. 84,000 which was duly furnished by the petitioner in this Court.

Mr. Zaheer Ahmed Khan, learned counsel for the petitioner, stated that if the respondents agree to accept furnishing of security by the petitioners instead of depositing half of the penalty amount and furnishing bank guarantee for the balance and hear and decide the appeal of the petitioner on merits he would not press this petition and would withdraw it.

Mr. K. A. Ghani, learned counsel for the respondents, taking a very fair attitude stated that the Central. Board of Revenue would be prepared to hear the appeal on merits if the petitioner furnishes security for the penalty amount to the satisfaction of the Collector of Customs in supersession of the previous order passed by the. Central Board of Revenue as well as the Government of Pakistan.

We feel that in the circumstances of this case, the course adopted by the learned counsel is only proper and meets ends of justice. Accordingly, with the consent of the learned counsel for the respondents; we set aside the impugned orders dated 28-3-1968 and 19-4-1969 passed by the Central Board of Revenue and the Government of Pakistan and direct that the appeal of the petitioner shall be heard by respondent No. 2 afresh and decided on merits on the petitioner furnishing security for the penalty amount of Rs. 81,000 to the satisfaction of the Collector of Customs Karachi within six weeks. In view of the order passed by us above, the security furnished by the petition .r in this Court stands discharged and the documents filed by the petitioner shall be returned to them to enable them to furnish security before the Collector of Customs, as undertaken by them. Since the petition stands disposed of by consent, we make no order as to costs.

Before parting, we may add that in case the petitioner fails to furnish security as undertaken by them, the impugned orders passed by the Central Board of Revenue as well as the Government of Pakistan in the appeal and revision shall stand.

Petition stands allowed accordingly with no order as to costs.

K. M. A. Petition allowed.

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