VALAPPIL HAMZA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Petitioners challenge Ext. P4 order in so far as the same came to be disposed of when similar appeals were pending before the Division Bench. Appeal Nos. C/22/2008-SM and C/23/2008-SM were pending before the Customs, Excise & Service Tax Appellate Tribunal which was arising out of the Order-in-Original No. 3/2007, dated 9-5-2007 of the Commissioner, Customs (Preventive), Cochin. With reference to the very same issue, appeals were pending before the Division Bench also as C/388/2007, C/389/2007 and C/390/2007. The matter before the Single Member came up for hearing on 4-11-2013. The petitioners had sent a fax message, Ext. P3 on 1-11-2013 seeking adjournment of the matter on the ground that the same ought to have been heard along with the connected matters pending before the Division Bench. The fax message confirmation report is produced as Ext. P3(a). However,, the Tribunal proceeded to hear and dispose of appeals C/22/2008-SM and C/23/2008-SM without taking note of the request for adjournment. The department appeals were allowed. The main contention urged by the petitioners is that all these appeals ought to have been heard by the Division Bench as the appeals pending before the Division Bench had also arisen out of the Order-in-Original No. 3/2007, dated 9-5-2007. In the aforesaid circumstances, the petitioners seek for appropriate directions to recall Ext. P4 order and for a direction to consider the same along with Appeal Nos. C/388/2007, C/389/2007 and C/390/2007.

(2.) Learned Standing Counsel appearing on behalf of the department submits that this writ petition is not maintainable in so far as the petitioners have an appellate remedy. Though the petitioners had contended that the fax was sent seeking adjournment, there was no request for adjournment at the time when the matter was heard. In so far as the Single Member of the Tribunal had decided the matter on merits, the petitioners should avail of the appellate remedy, as envisaged under law. Hence this writ petition is liable to be dismissed.

(3.) Learned Counsel for the petitioners however would submit that on disposal of the appeals C/22/2008-SM and C/23/2008-SM by the Tribunal, the appeals pending before the Division Bench will have the same fate and therefore, no useful purpose will be served in prosecuting the said appeal.