1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 1191 of 2009 HINDUSTAN ZINC LIMITED V/S COMMISSIONER, OF CUSTOMS (APPL.) & ANR Mr. DINESH MEHTA, for the appellant / petitioner Mr. VK MATHUR, for the respondent Date of Order : 7.10.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE MRS. MEENA V. GOMBER,J. ORDER ----- By this petition, the petitioner seeks to challenge the order, Annex.14, dated 27.1.2009 passed by the Commissioner of Customs (Appeals), Kandla, whereby the application for stay and for waiving the condition of pre-deposit has been dismissed. Vide order dated 17.2.2009 show cause notice was issued returnable within two weeks and thereafter Mr.Mathur appeared for the respondents and since 18.3.2009, the matter is being adjourned for one reason or the other. The fact also remains that so far the appeal has not been decided on merits, nor has it been dismissed on the ground of non-fulfillment of the requirement of pre-deposit and consequent upon the order dated 27.1.2009. Looking to the nature of the controversy involved, we think it appropriate to decide the writ petition finally at this stage itself as the parties are represented. Arguing the writ petition, both sides have their own 2 stories to tell, as to how the notice was received, it was reacted, the reaction was received by the authority, but then we do not stand advised to go into and write details of those stories. It would suffice to say that in para 5.3 the authority while dismissing the stay application had virtually gave up his mind on the ultimate merits of the case also. In that view of the matter, since the matter has been decided in absence and since the matter has already remained pending for all this long time, we think it appropriate and in the interest of justice that the authority, Commissioner of Customs (Appeals) be directed to hear the request for stay and/or waiver of the condition of requirement of pre-deposit afresh and decide the same on its own merits before proceeding further with the appeal. Accordingly, the order dated 27.1.2009 is set aside and the Commissioner of Customs (Appeals) is directed to hear the parties afresh on the application filed by the petitioner for stay and/or for waiving the requirement of pre-deposit. The parties are directed to appear before the Commissioner of Customs (Appeals) on 9th November 2009. It is clarified that if for any reason the petitioner fails to appear on that day, this petition will stand dismissed and the impugned order shall revive. Obviously till the request of the petitioner is considered afresh and decided on the merits in case the petitioner appears on 9th, the main appeal itself shall not be dismissed for non-compliance. ( MEENA V. GOMBER ),J. ( N P GUPTA ),J. /tarun/