1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6546 of 2009 M/s.Vastupal Tejpal (India) .. Petitioner versus Commissioner of Customs(Import) .. Respondent ... Mr.B.B. Nangare i/b B.B. Nangare & Associates for the petitioner. Mr. R.V. Desai, Sr.Advocate with Mr.J.B. Mishra for respondent. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 13th August 2009 P.C:- 1. This petition is directed against the order dated 22nd April 2009 whereby the petitioner’s application for condonation of delay in preferring the appeal has been rejected and consequently the appeal dismissed. There is a delay of 116 days in filing the appeal. 2. On behalf of the petitioner, learned counsel submits that they had shown cause by producing medical certificates. Apart from that, it is 2 pointed out that even after the appeal memo was drafted there was a delay of 17 days on account of fault of the lawyer in filing the appeal. It is submitted that the party cannot be penalised for any action on the part of the lawyer. 3. The law is now well settled. The test that has to be considered is whether the party has been prosecuting the remedies available. In the instant case, the appeal is against the original order. An appeal has been preferred but there is a delay of 116 days. To deny a party an opportunity of presenting their case would defeat the very ends of justice. In these circumstances at the highest, petitioner can be saddled with costs. 4. In the light of the above, impugned order is set aside. Petitioner is directed to pay in the branch of the Commissioner of Customs (Imports) J.N.C.H. Nhava Sheva. Costs quantified at Rs.5,000/- within three weeks from today. 5. On such payment, the impugned order stands set aside. On failure to pay, no interference in the order. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK, J) (F.I. REBELLO, J)