JUDGMENT M.H.S. Ansari, J. 1. AS identical facts are involved, the two writ petitions are taken up analogously and are disposed of by this common order. 2. CERTAIN relevant facts alone need to be stated. They are that the Adjudicating Authority passed an order on 24th April, 1992 imposing a penalty consequent upon seizure of the goods. Aggrieved against the said orders the petitioners preferred their respective appeals before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). Along with the said appeals, the petitioners preferred applications under Section 35F of the Central Excise Act, 1944 for waiver of the precondition of deposit of duty which was subject matter of the appeal. The Appellate Tribunal by its order dated 25th July, 1996 allowed the miscellaneous applications on the condition that the petitioners deposit 25% of the impugned penalty within a timeframe. The time so fixed was three months from the date of the order and with a direction that the compliance shall be reported on or before 29th October, 1996. The petitioners appear to have filed applications for permission to pay the said amount by furnishing bank guarantee instead cash deposit. The said request was rejected. It must also be stated here that the respective petitioners had filed two writ petitions questioning the action of the Tribunal in refusing the request for substituting Cash Deposit by Bank Guarantee. The said two writ petitions were disposed of by an order dated 6th February, 1998 holding that the writ petitions have become infructuous on account of the dismissal of the appeal by orders of the Tribunal dated 9th January, 1998. 3. A perusal of the order dated 9th January, 1998 passed by CEGAT shows that the applicant writ petitioners herein having failed to comply with the Tribunal's order dated 25th July, 1996, the miscellaneous application was dismissed and consequently the appeal itself was dismissed. The said orders of the Tribunal dismissing the appeal Nos. C/V-156 to 162 of 1996 by order dated 9th January, 1998 are questioned in the present writ applications. 4. UNDER Section 35F the petitioner applicants were required to deposit with the Adjudicating Authority the penalty demanded in respect of which an appeal was preferred before the CEGAT. The deposit is a pre-condition to the filing of the appeal. C/V-156 to 162 of 1996 by order dated 9th January, 1998 are questioned in the present writ applications. 4. UNDER Section 35F the petitioner applicants were required to deposit with the Adjudicating Authority the penalty demanded in respect of which an appeal was preferred before the CEGAT. The deposit is a pre-condition to the filing of the appeal. By the proviso power, however, has been conferred upon the Appellate Tribunal to dispense with such deposit subject to such condition as it may deem fit to impose so as to safeguard the interest of the Revenue. In the instant case the petitioners have been granted relief under the proviso to Section 35F by the CEGAT whereby the petitioners were permitted to deposit 25% of the penalty within the timeframe and the petitioners having failed to comply with the said condition, the appeals have been dismissed. 5. THE learned Counsel for the petitioners contended that the Tribunal was not justified in passing an order of dismissal when it was informed to the Tribunal that the writ petitions were before the Court on the very same day, that is, 9th January, 1998.I cannot accede to the said contention for the simple reason that there was no order of stay of the matter before the Hon'ble Tribunal and more so when the timeframe fixed by the Tribunal for making the deposit had elapsed in October, 1996. 6. HOWEVER, one contention that merits consideration is that solely on the ground of non-compliance with the orders under Proviso to Section 35F, the petitioners are deprived of an opportunity of hearing. The matter has not been disposed of on merits but dismissed for non-compliance with the condition as to pre-deposit. The matter in controversy being one relating to penalty, this Court is of the view that the matter requires to be heard on merits subject of course to certain conditions which may safeguard the interest of the Revenue keeping in view the period since the passing of the original order and from the date of that order almost 6 1/2 years have elapsed. In the light of the above, both the writ petitions are being disposed of with a direction that if the petitioners deposit the entire amount due and payable by them under the orders of the Adjudicating Authority dated 24th April, 1992, which were the subject matter of appeal before the CEGAT in the appeals referred to supra, within a period of 8 (eight) weeks from the date hereof and upon furnishing proof of such payment, the learned Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta shall restore the appeals which have been dismissed by its order dated 9th January, 1998, and dispose of the same in accordance with law and after affording an opportunity of hearing to both the parties. In default of making the deposit as directed above within the time as specified above, this order shall stand vacated. 7. IN so far as the confiscated goods are concerned, it is directed that if the same have not already been sold, the Customs Authorities shall not sell the same for a period of 8 (eight) weeks from the date hereof and thereafter the sale shall be subject to the petitioners complying with the condition imposed hereinabove, that is, depositing the aforesaid amounts due. If the petitioners do not deposit the aforesaid amount within the specified period of 8 weeks, the Customs Authorities shall be entitled to dispose of the goods in accordance with law. As no affidavits in opposition have been filed, the averments made in the respective writ petitions are deemed not admitted.