IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF JULY, TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO : 12966 of 2008 Between: M/s. Bagadiya Brother's Pvt., Ltd., " Bagadiya Mansion" 15-63 Jawahar Nagar, Raipur, Chattisgargh, rep. by its Assistant Manager, Mr. Ahsan Khan. ..... PETITIONER AND 1.The Assistant Commissioner of Customs & Excise ( Exports) Custom House, Port Avenue, Visakhapatnam, A.P. 2.Union Bank of India, Visakhapatnam Branch Visakhapatnam 530 001 rep. by its Branch manager. 3.Union Bank of India, Main Branch Raipur, Chattisgargh rep. by its Branch manager. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any writ order or direction most particularly in the nature of Writ of Mandamus, directing the 1st respondent not to invoke the bank guarantees till the expiry of the statutory period of appeal under section 129A(1) of Customs Act, 1962 contrary to the direction in Board Circular No. 788/21/2004/CX dated 25.5.2004. Counsel for the Petitioner:MR.M.S.RAMCHANDRA RAO Counsel for the Respondents: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO : 12966 of 2008 ORDER: (Per Hon’ble Justice Sri B.Prakash Rao) Heard Sri M.S.Ramchandra Rao, learned counsel for the petitioner, and Sri A.Rajasekhar Reddy, learned Assistant Solicitor General appearing for the respondents. 2. At request of counsel on both sides, the writ petition itself is taken up for disposal. 3. The petitioner herein files this writ petition inter alia seeking for a writ of Mandamus directing the 1st respondent not to invoke the bank guarantees till the expiry of the statutory period of appeal under Section 129A (1) of Customs Act, 1962 (for short ‘the Act’) stating that such an action would be contrary to the direction in Board Circular No.788/21/2004/Cx, dated 25.05.2004. 4. The case of the petitioner is that even though statutory period of three months for preferring an appeal is provided under Section 129A (1) of the Act, however, even before expiry of the said period, the respondents are proceeding in a hasty manner by invoking the bank guarantees without even waiting for expiry of the said period. Hence, this writ petition seeking a direction to enable the petitioner to file an appeal and obtain necessary orders and till such time, the respondents shall not invoke the bank guarantees. 5. Sri A.Rajasekhar Reddy, Assistant Solicitor General, appearing for the respondents submits that the prayer as sought for in the writ petition by invoking the Special Original Jurisdiction under Article 226 of the Constitution of India is not maintainable, more so, when the petitioner has, ultimately, got the remedy of appeal. 6. Learned counsel for the petitioner submits that the petitioner has already filed an appeal on 27.06.2008 along with stay application and sent the same through speed post. According to him, the said appeal involved several substantial questions. 7. Having heard the submissions made on either side and also on perusal of the material available on record, since the petitioner has availed the remedy of appeal, we find no grounds to entertain this writ petition. However, the appellate authority-Customs Excise & Service Tax Appellate Tribunal (CESTAT), Bangalore, shall take up the appeal filed by the petitioner and pass appropriate orders on the stay application, within a period of two weeks from the date of receipt of a copy of this order. It is needless to mention that till such orders are passed by the appellate authority, the respondents shall not take any coercive steps. 8. Accordingly, the writ petition is disposed of. No order as to costs. ________________________ JUSTICE B.PRAKASH RAO, ___________________ JUSTICE R.KANTHA RAO 03.07.2008 v v