VISHNU CHOITRAM BHATIA Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule. Ms. Amee Yajnik, learned senior standing counsel waives service of notice of rule on behalf of the respondents.

(2.) Having regard to the controversy involved in the present petition which lies in a very narrow compass, with the consent of the learned counsel for the respective parties, the matter was taken up for final hearing today.

(3.) The facts stated briefly are that against a common order-in-original dated 15-9-2009 passed by the Commissioner of Central Excise and Customs, Ahmedabad, the petitioner and others, including M/s. Bhairavi Exim Pvt. Ltd., preferred appeals before the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the Tribunal"). Along with the appeals, stay applications also came to be filed. All the stay applications came to be disposed of by a common order dated 7-7-2010 whereby, the Tribunal directed the co-appellant - M/s. Bhairavi Exim Pvt. Ltd. to deposit 50% of the duty within a period of eight weeks from the date of receipt of the order, subject to which the pre-deposit of balance amount of duty and entire penalty would stand waived during the pendency of the proceedings. As regards the co-appellants including the petitioner, who are brokers, textile consultants, recipients of raw material, high sea sellers, directors and employees of the company, the Tribunal dispensed with the condition of pre-deposit of penalties imposed upon them, inasmuch as, it had directed M/s. Bhairavi Exim Pvt. Ltd. to deposit a part of the amount. It appears that M/s. Bhairavi Exim Pvt. Ltd. did not deposit the amount of 50% of duty, as directed by the Tribunal. It appears that by a communication dated 16-7-2014 of the Assistant Registrar of the Tribunal, in connection with the petitioner's letter dated 17-1-2014 regarding filing of miscellaneous application for extension of stay order, the petitioner was informed that upon verification of the record, it was found that Appeal No. C/488/2009 filed by the petitioner had been decided by the Tribunal by an order dated 28-9-2010. The record of the present petition reveals that by an order dated 28-9-2010, the Tribunal had dismissed the appeal preferred by M/s. Bhairavi Exim Pvt. Ltd. for non-compliance of the provisions of Section 129A of the Customs Act, inasmuch as, it had not made pre-deposit as directed by the Tribunal. In view of the above communication of the Registry of the Tribunal, the petitioner made a restoration application before the Tribunal, which came to be rejected by the impugned order dated 4-2-2015 whereby, the Tribunal observed that the pre-deposit of penalties on the co-appellants were waived on condition that the main appellant was directed to make pre-deposit, and that the main appellant having not made pre-deposit, the appeal was rightly dismissed for non-compliance. Being aggrieved, the petitioner has filed the present petition.