AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2372 OF 2008 IN CUSTOMS APPEAL NO.7 OF 2004 The Commissioner of Customs (EP) Mumbai ..Appellant. V/s. M/s.Larsen & Toubro Limited ..Respondent. Mr.M.I. Sethna with Mr.R. Asokan for the Appellant. Mr.J.S. Bhatt with Mr.Prakash Shah & Mr.Jitu Motwani i/by PDS Legal for the Respondent. CORAM : D.K. DESHMUKH & J.P. DEVADHAR, JJ. DATED : 24TH SEPTEMBER, 2008. P.C. : 1. This is a notice of motion taken out by the revenue. Admitted facts are that the Appeal i.e. Customs Appeal No.7 of 2004 is directed against the order of the tribunal which makes the respondent entitled to the refund of certain amount which they have deposited. In the appeal, there was a prayer for stay. The Court admitted appeal, but did not grant any interim order. The respondent, therefore, applied before the appropriate authority for refund. As per the order of the tribunal impugned in the present appeal, the authority held that the amount is refundable but is not payable to the respondent. According to the authority, that amount is to be deposited in the consumer welfare fund. That order was challenged before the appellate authority. The appellate authority has reversed that order and has held that the amount is actually payable to the respondent. It is also common ground that against that order, appeal before the tribunal is competent and that appeal has actually been filed by the appellant herein. 2. Now, it is clear from the abovesaid facts that it is a stand of the respondent themselves that they have complied with the order which is impugned in this appeal, subject to the result of the appeal. Now the issue is whether the amount is payable to the respondent or the amount goes to the consumer welfare fund and that issue is subjudice before the tribunal, in view of the appeal filed by the appellant themselves. We have also been informed that the appellant has also made an application for interim relief. 3. In our opinion, the appropriate remedy of the appellant is to prosecute the remedy before the tribunal. There is no question of grant of any interim stay of the operation of the order which is impugned in the appeal. 4. The notice of motion ill advised and misconceived. Hence, rejected. 5. The appeal be fixed for final hearing in the second week of November, 2008. D.K. DESHMUKH, J. J.P. DEVADHAR, J.