Chonakadavath Mohammed vs Addl. Commr. of Cus.

B.P. Ray, J.—Heard learned counsel for the parties and perused the materials available on record. The writ petitioner, who is the appellant in the Appeal No. 567/1985 on the file of the Customs, Excise and Gold (Control), Appellate Tribunal (West Zonal Bench), Mumbai, has filed this writ petition with the following prayers:

"(a) issue a writ of mandamus or other appropriate writ, direction or order directing the second respondents to grant leave to constitute fresh appeal and to consider the same within a short period and dispose of the Appeal No. 567/1985 pending before them;

(b) issue, a writ of certiorari or other appropriate writ, direction or order calling for the records relating to the Appeal No. 567/1985 pending before the second respondent, the order of penalty against which the appeal emerged;

(bb) issue a writ of certiorari or other appropriate writ, direction or order calling for the records relating to the Ext. R1(b) order passed by the second respondent and quashing the same;"

It appears that Appeal No. 567/1985 was dismissed on 10-7-1989 due to non-remittance of pre-deposit which is mandatory for maintaining appeal. Moreover, the Tribunal retains the records only for five years after the disposal of a case. Therefore, the records relating to this case has been destroyed after expiry of five years.

Sri Mohammed Rafiq, learned counsel for the petitioner has confined his argument to prayer (bb) and submits that the petitioner is ready to deposit the statutory deposit of Rs. 10,000/- within one month with the appellate Authority and shall file a fresh appeal by reconstituting the appellate records.

Sri. Tojan. J. Vathikulam, learned Standing Counsel appearing for C.B.E. & C. submits that the appeal was dismissed in 1989 and the same cannot be ordered to be reconstituted to this distance of time. Annexure R1(b) order is an appealable order. Therefore, the writ petition is not maintainable.

Learned counsel for the petitioner has relied upon the decision reported in Bhavya Apparels Private Limited and Another Vs. Union of India (UOI) and Another, . In this case, the Apex Court remitted the matter to CESTAT for fresh consideration and held that Section 129E of the Act would be attracted where the goods in question are not in the custody of the Revenue. Hence, where the goods in question are in the custody of the Revenue, Section 129E should not have been invoked. The CESTAT ought to have taken into consideration the said factor and should have also applied its mind to the question of undue hardship to the appellant upon considering the existence of a prima facie case.

It appears that the petitioner himself was negligent in pursuing the appeal. For the laches, I impose a cost of Rs. 5,000/- which shall be paid to the learned counsel for the respondent within two weeks from the date of receipt of a copy of this judgment. It appears that the petitioner was not aware of disposal of the appeal and remitting the appeal to challenge the appellate order after keeping the case pending for a decade in this court will not enure to the benefit of the parties. Therefore, I direct as follows:

It is open to the petitioner to file a fresh appeal before the second respondent on or before 25th March, 2014 along with a copy of this judgment. If such an appeal is filed, the second respondent shall hear and dispose of the same on its merit within a period of three months, after giving an opportunity of hearing to all the affected parties, keeping in view the authoritative pronouncements of the apex court cited above. The department is directed to reconstitute the appellate records in accordance with law. Writ petition is disposed of accordingly.