JUDGMENT : B.C. Patel, J. These petitions are filed against the order passed by Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench, Mumbai on 18.2.1999 and 19.7.1999. The Tribunal passed an order on 19.7.1999 dismissing the appeal on account of failure to comply with the provisions of section 129.E of the Customs Act, 1962 [hereinafter referred to as the Act]. Learned advocate for the petitioners submitted that the Tribunal ought to have allowed the applications on merits. 2. The Apex Court in the case of Vijay Prakash & Jawahar v. Collector Of Customs (Preventive) Bombay reported in AIR 1988 SC 2010 , has interpreted the provisions of section 129.E of the Act and pointed out that the purpose of the section is to act in terrorem to make the people comply with the provisions of law. 3. Learned advocate appearing for the petitioner submitted that in view of the decision of the Bombay High Court (Aurangabad Bench) in the case of B.D. Steels & Traders v. Union Of India reported in 1998 (103) ELT 218, the appeal ought not to have been dismissed. His contention is that the appeal ought to have been heard on merits, despite the fact that the amount of duty has not been paid, as directed by the Tribunal. 4. It appears that before the Aurangabad Bench of the Mumbai High Court, the case was of Modvat credit and the order was confirmed ex parte wherein the demand was made of Rs. 7,85,000/- and penalty of Rs. 50,000/- was imposed under Rule 173 (2) of the Rules. It was contended that the appeal was dismissed solely on account of non-compliance with the directions during the pendency of the appeal, and, therefore, the authority below had failed to exercise the powers as appellate authority in accordance with law. It was pointed out to the Bench hearing the application that after hearing the appeal, authority continued the stay however, subject to deposit of Rs. 2 lakhs within two months. It was submitted that even if the condition was not fulfilled the appeal could not have been dismissed for non-compliance of the said condition. In reply, it was pointed out that the appeal of that petitioner was dismissed for his own fault and the petitioner is estopped from making any grievance against the order passed by the Tribunal. It was submitted that even if the condition was not fulfilled the appeal could not have been dismissed for non-compliance of the said condition. In reply, it was pointed out that the appeal of that petitioner was dismissed for his own fault and the petitioner is estopped from making any grievance against the order passed by the Tribunal. It was also pointed out that the order is a result of non-compliance by the petitioner at the time of hearing of the appeal before the Tribunal. 5. We may, however, note that in the instant case, the petitioner did not remain present despite opportunity given before the adjudicating authority and the order came to be passed. 6. Chapter XV of the Act deals with the appeals under the Act. Appeal is to be preferred against the order passed under the Act to the authorities as mentioned in the relevant sections. Section 128.A provides for a procedure in appeal. Section 129 provides for appellate Tribunal. Section 129.A provides for appeals to the Tribunal. Section 129.B refers to orders of the appellate Tribunal and section 129.C refers to procedure of the appellate Tribunal. In the instant case, we are not concerned with the provisions contained in section 129.D, 129.DA and 129 DD of the Act and hence we are not referring to the same. Section 129.E being the most relevant section we are reproducing the same : 129.E. Where in any appeal under this chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied. Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue. 7. 7. Thus reading the aforesaid provisions, it become clear that pending the appeal, the appellant shall deposit with the proper officer the duty and interest demanded or penalty levied. However, the proviso makes it very clear that if the Appellate authority is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Appellate authority may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue. 8. This can be done provided the Tribunal or Commissioner (Appeals) is satisfied on the material placed on record that there is undue hardship to a person if he is required to pay the amount demanded. In the absence of any material it cannot be said that there is undue hardship. Mere filing an affidavit may not be sufficient. It was the duty of petitioners to place necessary and sufficient material to show that undue hardship will be caused if stay is not granted. On production of such material it would be just and proper to request the authority to raise a presumption that there will be undue hardship. In the absence of placing any material, it is futile to say that there is undue hardship and, therefore, the petitioner should be protected. When the Tribunal was not satisfied, there is no question for us to interfere, more particularly when insufficient evidence is produced indicating that undue hardship will be caused to the petitioners if order is not stayed. 9. Further, when we asked the learned advocate as to what material he has got with him to support the ground of undue hardship, learned advocate was not in a position to place any material before us, except paragraph 5 of the order of the Tribunal. In paragraph 5 of the order of the Tribunal, the Tribunal has dealt with the contentions raised on behalf of the petitioners that they are poor and daily wage earners. This could not be decided on the strength of affidavit [Affidavit is not referred in the order, but it was stated by the Advocate]. The Tribunal has considered this aspect in detail and has pointed out that the petitioners along with other persons were travelling in a car together with the contraband, smuggled articles in a concealed manner. This could not be decided on the strength of affidavit [Affidavit is not referred in the order, but it was stated by the Advocate]. The Tribunal has considered this aspect in detail and has pointed out that the petitioners along with other persons were travelling in a car together with the contraband, smuggled articles in a concealed manner. Manji Vishram Bhuva, father of Kantilal Manji and Lalji Manji were travelling together. From the record it appears that Manji Vashram disposed of smuggled gold on earlier occasions. Manji Vashram admitted the fact that Lalji imported gold biscuits and watches. All the three persons were found in one car with smuggled gold concealed in shoes. There was an admission of importation of gold and watches. Petitioners and Kantilal retracted from their confession after about seven weeks. In view of this, the Tribunal was of the opinion that it cannot be said that these persons are poor persons. The Tribunal kept in mind the role played by Manji and Kantilal apart from aiding and abating Lalji in the present offence. He was involved in past in such activities. Thus, the question required to be considered by the Tribunal was whether they are poor persons and whether carrying out the order would cause undue hardship to the petitioners on the sole strength of affidavit filed by the petitioners. They arrived in India by plane from Muscat, were found travelling in a car with smuggled gold, earlier involvement and retracting from the confession were the circumstances to be considered against the statement that the petitioners were poor. In view of other circumstances the Tribunal may not accept the statement and, therefore, it was necessary to produce other material to show that undue hardship will be caused if they have to comply with the order. The Tribunal, considering all these circumstances has arrived at a conclusion. In our opinion, it cannot be said that an apparent error either of fact or of law, has been committed by the Tribunal. However, it is a question of appreciation and we would not like to interfere with the inference drawn by the Tribunal on the basis of the material placed on the record. 10. In our opinion, it cannot be said that an apparent error either of fact or of law, has been committed by the Tribunal. However, it is a question of appreciation and we would not like to interfere with the inference drawn by the Tribunal on the basis of the material placed on the record. 10. From the decision which we have pointed out in the case of Vijay Prakash & Jawahar v. Collector Of Customs (Preventive) Bombay reported in 1988 SC 2010, and the facts before us, the decision cited by the learned counsel appearing for the petitioners in case of B.D. Steels & Traders v. Union Of India reported in 98 (103) ELT 218, has no application. 11. In the case of B.D. Steels (supra), the Division Bench of the Bombay High Court considered that the appeal came to be dismissed in default. In paragraph 7 of the judgment, it is observed that during the pendency of the appeal, after hearing the respondent No.2, appellate authority granted conditional stay subject to deposit of Rs. 2,00,000/- within two months. It was submitted that even assuming that the condition was not fulfilled, that does not necessarily mean that the appeal ought to be dismissed for non-compliance of the said condition. In paragraph 9 of the judgment, the Court pointed out that in reply, it was pointed out that the contention based upon the judgment relied upon by it cannot be accepted since the order of the Tribunal dated 19.2.1997 is a result of non-appearance of the petitioner for hearing of the appeal before the Tribunal. Thus, it appears that despite the order of deposit of Rs. 2 lakhs, the appeal was dismissed and the order came to be passed on 19.2.1997 as a result of non-appearance of the petitioner. If a conditional order of depositing an amount is passed, there is no question of hearing the matter without the condition being fulfilled. 12. However, it appears that in the case of B.D. Steels, the matter was dismissed not for default of payment, but for non-appearance as observed by the Bombay High Court. In paragraph 11, the Bench has given direction not only to restore the appeal to file but to dispose of the appeal in accordance with law as expeditiously as possible on hearing the petitioner on merits of the case. In paragraph 11, the Bench has given direction not only to restore the appeal to file but to dispose of the appeal in accordance with law as expeditiously as possible on hearing the petitioner on merits of the case. It is submitted before us that reading the judgment, it clearly appears that the Division Bench has directed to hear the appeal on merit despite the non-compliance of the order and dismissal, may be on account of non-appearance. It is not possible to agree with the contention raised by the learned advocate and it is also not possible for us to agree with the views expressed by the Bombay High Court in the case of B.D. Steels. When there was non-compliance of the order dated 19.6.1996 to deposit the amount within a period of two months, the appellants will have no case to say that the appeal ought to have been heard on merits without compliance of that order. Directing the Tribunal to restore the appeal dismissed on the ground of non-appearance is one thing and to direct hearing of the appeal without compliance is another thing. 13. While deciding the case of B.D. Steels (supra) the Court has not considered the Apex Court's judgment in the case of Vijay Prakash (supra). The Apex Court has pointed out as to when right becomes vested and exercisable. In the case like the present one, right to appeal being right upon certain conditions, it is upon the fulfilment of conditions that right of appeal becomes vested and exercisable and not otherwise. The Apex Court pointed out as under in paragraph 5 of Vijay Prakash's judgment :- "5. The aforesaid Section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal .... .... ... The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority." In paragraph 8 of the aforesaid judgment, the Apex Court pointed out :- "8. .... .... ... The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority." In paragraph 8 of the aforesaid judgment, the Apex Court pointed out :- "8. .... In the instant case the only substantive right is the right of appeal as contemplated under Sections 129.A and 129E of the Act and that right is a conditional one and the Legislature in its wisdom has imposed that condition. No question of whittling down that right by an alteration of procedure arises in this case. In paragraph 9 of the judgment, the Apex Court held :- "Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant." In paragraph 13, the Apex Court held as under :- "It is not the law that adjudication by itself following the rules of natural justice would be violative of any right constitutional or statutory without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that the right becomes vested and exercisable to the appellant. The provisions of Section 129.E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and properly." In paragraph 14, the Apex Court held :- ".... The purpose of the Section is to act in terrorem to make the people comply with the provisions of law." 14. Thus, in view of the Apex Court's aforesaid judgment, the decision in case of BD STEEL TRADERS is per incuriam. As held by the Apex Court, when legislature has provided an appeal upon certain conditions, it is upon the fulfilment of such conditions that the right of appeal becomes vested and exercisable and not otherwise. In the instant case, non-compliance of the conditions would result in dismissal of appeal by the Tribunal. 15. These petitions stand dismissed. Notice is discharged. Interim relief stands vacated. In the instant case, non-compliance of the conditions would result in dismissal of appeal by the Tribunal. 15. These petitions stand dismissed. Notice is discharged. Interim relief stands vacated. However, if the petitioners deposit within a period of three weeks from today the amount as ordered by the Tribunal, but with 18% interest thereon, the Appeals shall stand restored to the file of the Tribunal and the Tribunal shall hear the appeals and decide the same on merits. Petition dismissed.