1 WPL2904.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION KJ WRIT PETITION (L) NO.2904 OF 2010 Mahindra & Mahindra Contech Ltd., )..Petitioners Vs. Union of India & Ors. )..Respondents ---- Mr.Sunip Sen @ Mr.Mehul Shah i/by ANS Law Associates for the petitioners. Mr.A.S.Rao @ Mr.J. B. Mishra for the respondents. ---- CORAM : J. P .DEVADHAR & MRS.MRIDULA BHATKAR,JJ DATE : 27/1/2011. PC 1 Heard. Rule. By consent, rule made returnable forthwith. 2 The petitioners are aggrieved by the action of the respondents in attaching their bank account for realisation of the duty amounting to Rs.93,74,403/- and penalty of Rs.93,74,403/- by the order in original which is the subject matter of Appeal pending before the CESTAT. Admittedly, the CESTAT by its order 2 WPL2904.10.sxw dated 22.11.2005 had granted complete waiver of the pre-deposit during the pendency of the Appeal. It appears that the respondents have attached the bank account of the petitioner, inspite of the complete waiver granted by the Tribunal on 22.11.2005 in view of provisions of Section 35C(2A) of the Central Excise Act, 1944. This Court in the case of Nedumparambil P. George Vs. Union of India reported in 2009 (242) E.L.T 523 (Bom.) considered a similar provision contained in Section 129 B (2A) of the Customs Act 1962 and held that where the appellant is not at fault and the failure is on account of the Tribunal to hear the appeal for whatever reason or on account of the acts of department, the second proviso of Section 129B(2A) of Customs Act, 1962 cannot be read to defeat the vested right of the appellant. There is nothing on record to show that the petitioner is in any way responsible for the delay in disposing of the Appeal. In fact, admittedly the Appeal had not come up on board for hearing after the complete waiver of pre-deposit was granted on 22.11.2005 on account of the non availability of the Bench at Mumbai. 3 WPL2904.10.sxw 3 In these circumstances, the attachment order dated 9.12.2010 is quashed and set aside and the respondents are directed not to initiate any proceedings to recover the disputed amount during the pendency of the appeal. However, in the facts and circumstances of the case, since the matter is pending for long time, the Tribunal is directed to dispose of the appeal filed by the petitioners as expeditiously as possible, preferably within a period of six months from today. Rule made absolute accordingly. (MRS.MRIDULA BHATKAR,J) (J.P.DEVADHAR,J)