1 nma3579-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3579 OF 2010 IN CENTRAL EXCISE APPEAL (LOD) NO.223 OF 2007 The Commissioner of Central Excise, Pune-III ..Appellant. V/s. M/s. Associated Capsules Pvt. Ltd. ..Respondent. Mr. A.S. Rao with S.D. Bhosale for the appellant. Mr. H.C. Dharmadhikari with Ms. Lalital S.Pardhe for the respondent. CORAM : J.P. DEVADHAR AND SMT. R.S. DALVI, JJ. DATED : 7TH APRIL, 2011 P.C. :- 1. By this Notice of Motion, the appellant seeks condonation of delay of 575 days in taking out the Notice of Motion to set aside the order passed by the Prothonotory & Senior Master on 18/2/2009. 2. In the present case, the Central Excise Appeal (Lod) No.223 of 2007 itself was filed belatedly and, therefore, Notice of Motion No. 3290 of 2007 was taken out seeking condonation of delay in filing the 2 nma3579-10 appeal. 3. On 24/4/2008, this Court while condoning the delay and allowing the Notice of Motion No.3290 of 2007 directed that the appeal be placed on board for admission in the month of August, 2008 subject to numbering. Accordingly, the objections were removed by the appellant on 23/5/2008. Thereafter, the appeal ought to have been numbered and placed for admission in August, 2008. It appears that even after all the objections were removed on 23/5/2008, some more objections were raised by the department on 27/5/2008. Since these objections were not removed, the matter was placed on Board and by an order dated 18/2/2009 the Prothonotary and Senior Master directed that the office objections be removed on or before 18/3/2009 failing which the Memo of Appeal shall stand rejected under Rule 986. It is pertinent to note that none appeared on behalf of the appellant when the matter was placed before the Prothonotary on 18/3/2009 and no steps were taken to remove the office objections. Thereafter, the present Notice of Motion is taken out on 25/11/2010 seeking condonation of delay of 575 days and for setting aside the order passed by the Prothonotary & Senior Master on 18/2/2009. 4. In the additional affidavit filed on behalf of the appellant, it is contended that in view of the fact that all objections raised in the appeal 3 nma3579-10 were already removed the Officer attending the matter failed to take notice of the objections raised thereafter and that is why no one appeared before the Prothonotary & Senior Master on 18/2/2009. On behalf of the respondent, it is contended that in the light of the judgment of this Court in the case of Bank of Baroda V/s. Deepak Raghuvir Wagle & Anr.(Review Petition No.15 of 2007) decided on 12/9/2007, the proper course for the appellant was to move the Prothonotory & Senior Master and not to file the present Notice of Motion. 5. In our opinion, in the present case, admittedly all the objections raised in the appeal were removed by the appellant. Ordinarily, objections are not raised in instalments. However, when the matter was placed before the Prothonotary on 18/2/2009 for non removal of office objections raised for the second time, it was obligatory on the part of Advocate for the appellant to appear before the Prothonotary or in the alternative to remove the objections within the stipulated time. Therefore, the cause shown cannot be said to be sufficient cause. However, looking to the fact that the objections originally raised were removed within the stipulated time, in our opinion, in the facts of the present case instead of directing the appellant to move the Prothonotary for recalling the order dated 18/2/2009 it would be just and proper to condone the delay and set aside the order dated 18/2/2009 subject to payment of costs. 4 nma3579-10 6. Accordingly, Notice of Motion is made absolute in terms of prayer clauses (a) & (b) subject to payment of costs of Rs.5,000/- to be paid by the appellant to the respondent within two weeks from today. Appellant to remove office objections within one week thereafter. 7. Notice of Motion is disposed off accordingly. (SMT. R.S. DALVI, J.) (J.P. DEVADHAR, J.)