THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.3949 of 2010 August 24, 2010 Between: M/s.Arani Agro Oil Industries Limited. … Petitioner And The Assistant Commissioner of Customs, Kakinada Customs Division –I, Port Area, Kakinada and two others ... Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.3949 of 2010 ORDER (Per Hon’ble Sri Justice V.V.S.Rao): The petitioner is aggrieved by the non-disposal of application for Rectification of Mistake (RoM) under Section 129B(2) of the Customs Act, 1962 (the Act). He therefore seeks a mandamus for declaration and direction. The short matter of the case necessary for disposal of the writ petition at the stage of admission - of course, after hearing the senior counsel for the petitioner and the senior standing counsel for Customs - is as follows. The petitioner is an importer of Crude palm oil through Kakinada Sea Port. It has also refining facility there for the purpose of marketing edible palm oil. At the relevant point of time, the petitioner company imported 1458.325 metric tonnes of palm oil in bulk falling under Chapter Sub Heading No.15119090 of the Customs Tariff Act, 1975. Indisputably, the imported bulk palm oil has to satisfy two parameters, namely, it is edible grade, and the total range of carotenoid in the oil is within permissible limits. The Assistant Commissioner of Customs, Kakinada-I adjudicated the matter and, by order dated 28.12.2006, determined the customs duty payable thereon on the ground that both the parameters were not satisfied. The petitioner company appealed to the Commissioner (Appeals). By order dated 19.02.2008, the appeal was dismissed. The second respondent thereafter initiated proceedings for confiscation and imposition of penalty under Sections 111(d), 111(m), 112(a) and 125 of the Act. By order dated 09.09.2008, the matter was adjudicated and the petitioner company was directed to pay fine of Rs.1,00,00,000/- (Rupees one crore only) under Section 125 of the Act, Rs.30,00,000/- (Rupees thirty lakhs only) towards penalty and Rs.5,00,000/- (Rupees five lakhs only) on the authorized signatory. Aggrieved by the appellate order as well as the penalty order, the petitioner preferred two appeals under Section 129A of the Act. By an order dated 22.12.2009, the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dismissed both the appeals. The petitioner company then filed an application for RoM. It also filed an interlocutory application under 28-C of the CESTAT (Procedure) Rules, 1982 seeking grant of stay of operation of the order of the first respondent herein. Be it noted, indisputably during the pendency of the appeal before the CESTAT, there was stay of recovery of fine and penalty imposed by the second respondent. The grievance of the petitioner, as projected across the bar, is that though the application for ROM is filed in February, 2010 along with an interlocutory application for stay of operation of the order of the first respondent herein, the same has not been considered expeditiously. We have been taken through the orders passed in OIO as well as the orders of Commissioner (Appeals). Our attention is also invited to the observations made by the learned CESTAT, while granting stay vide order No.1226/2009 dated 10.09.2009. These would support the contention that all along, during l i s pendency period, the petitioner company was protected from being coerced to pay the imposed fine and penalty. If that be so, it would be in the fitness of things and in the interest of justice that the petitioner’s application for RoM be disposed of as expeditiously as possible. If, for any reason, the learned CESTAT cannot take up the main application for RoM due to the already fixed hearing schedules, it would be appropriate to dispose of the interlocutory application filed along with the application for RoM. Such a course of action would safeguard the interests of the assessee as well as the revenue. We, however, hasten to add that, while considering the interlocutory application of the petitioner company for stay of operation of the order of the first respondent within its jurisdictional power and discretion, our observations, if any, hereinabove shall not be construed by the CESTAT as deciding the balance of convenience in favour of the petitioner company. We accordingly dispose of this writ petition requesting that the learned CESTAT, Bangalore may dispose of the interlocutory application filed along with the application for RoM within a period of ten days from the date of receipt of a copy of this order. No costs. ________________ (V.V.S. RAO, J) _______________________________ (RAMESH RANGANATHAN, J) August 24, 2010 Note: Issue CC by 25.08.2010. (By order) VGB