1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD First Appeal Stamp No.25392 Of 2009 (First Appeal No.1480/2010) * M/s Ganesh Re-Rolling Mill, ] Tuljapur Road, Osmanabad, ] Through Partner : ] Shivram S/o Mallikarjun ] Ghodke, ] Age 48 years, ] Occupation : Business, ] R/o Samatanagar, Osmanabad ] Taluka and District ]..Appellant Osmanabad. ] Versus 1) The Union of India ] Through ] Secretary, Finance ] Ministry, New Delhi. ] ] 2) Commissioner of Central ] Excise and Customs, ] Town Center, ] Aurangabad. ] ] 3) Joint Commissioner of ] Central Excise and ] Customs, ] Town Center, ] Aurangabad. ] ] 4) Deputy Commissioner of ] Central Excise and ] 2 Custom, Nanded. ] 5) Superintendent, ] Central Excise and ] Customs, Nanded. ] .. Respondents. -------- Shri. Satish M Godsay, Advocate for appellant. Shri. Alok Sharma, Assistant Solicitor General of India, for the respondents. -------- CORAM: NARESH H PATIL & K.K. TATED, JJ. DATE: 18th JUNE 2010 ORAL JUDGMENT (PER NARESH H PATIL, J.): 1) Heard. 2) The appeal is admitted and by consent taken up for final hearing. 3) The appellant had, in earlier round, filed an appeal in this Court being First Appeal No.549 of 2008 against the order 3 passed by the Customs Excise & Service Tax Appellate Tribunal, West Regional Bench at Mumbai, dated 17-10-2007 dismissing the appeal filed by the appellant on account of failure to comply with the condition of deposit of Rs.1,00,000/- as directed by the Tribunal. By an order dated 10th September 2008 the Division Bench allowed the appeal, quashed & set aside the order passed by the Tribunal and remitted the matter to the Tribunal on condition that, the appellant would deposit amount of Rs.1,00,000 within three weeks. 4) Admittedly the appellant deposited the amount on 8th October 2008 whereas, he ought to have deposited the amount on or before 1st October 2008 on which date three weeks’ period was to expire. 4 5) The learned counsel Shri. Godsay submitted that the office of the Tribunal did not accept the amount unless certified copy of the order passed by the High Court was produced which took some time. 6) The learned Assistant Solicitor General of India Shri. Alok Sharma submitted that the appellant ought to have been diligent in the light of the fact that the High Court had granted three weeks time to deposit the amount of Rs.1,00,000/-. The counsel submits that in the light of non compliance of the order passed by the High Court the Tribunal was justified in dismissing the appeal on that ground alone. 7) Considering the submissions advanced we do not find any intentional delay in 5 depositing the amount with the Tribunal by the appellant. It is true that the appellant ought to have been diligent in complying with the order of the Court if the appellant wanted to prosecute the appeal before the Tribunal. But at the same time if we dismiss this appeal for non compliance of the order, prejudice would be caused to the appellant and same would not be in the interest of justice too. In this view we find that the appellant’s plea is required to be accepted for allowing him to prosecute the appeal before the Tribunal. 8) The impugned order No.M/284/09/EB/C- II dated 23-3-2009 in Appeal No.E/451/2007- Mum passed by the Customs Excise & Service Tax Appellate Tribunal West Zonal Bench at Mumbai is quashed and set aside. The amount 6 which is already deposited, according to the counsel, with the Tribunal shall be deemed to have been deposited within reasonable time frame. The appeal shall be restored to the files of the Tribunal. The Tribunal is directed to deal with the appeal on merits. The appellant shall cooperate with the Tribunal in final disposal of the appeal. 9) The appeal is allowed with no order as to costs. Sd/- Sd/- (K.K. TATED, J.) (NARESH H PATIL, J.) rsl/ fast.25392.09