Vaish Brother Through Partner Vs Commissioner of Customs (Delhi High Court)
It is not disputed that the respondent / revenue accepts that the appellant had right to file an appeal challenging the order of the first appellate authority confirming penalty imposed by the Order in Original before the Appellate Tribunal under Section 129A (1) of the Act. Proviso (iii) to sub-section 1 of Section 129A gives discretion to Tribunal to admit or not to admit an appeal where the amount of penalty determined does not exceed Rs.2.0 lakhs. That the discretion exists cannot be disputed. In the present appeal, however, it is exercise of the discretion in not entertaining and admitting the appeal which is in question. The impugned order merely refers to the proviso and the discretion vested with the Tribunal. The Order is silent and does not state and give reasons for exercise of discretion i.e. refusal to admit and decide the appeal on merits. Discretion gives choice of option, but the choice of option in quasi judicial matters is not absolute and unfettered. Discretion vested vide proviso to Section 129 A of the Act is an effective tool which enables the Tribunal not waste time and effort in deciding petty and small amount cases. However, this discretionary power must be exercised and be guided by reasonableness and fairness, as the bar or prohibition is not absolute and applicable universally to all cases. Discretion should not be excised whimsical and in an arbitrary manner for then it may lead to odd and unacceptable consequences and results.
