1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 79 OF 2009 Shantilal Jain. ... Appellant. V/s. Union of India and another. ... Respondents. WITH CUSTOMS APPEAL NO. 80 OF 2009 Harish B. Jain. ... Appellant. V/s. Commissioner of Customs and another. ... Respondents. H.R.Shetty i/b. H.R.Shetty & Co. for the appellants. A.S.Rao with R.B.Pardeshi for the respondents. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 11th March 2010. P.C. : Both these appeals filed by the appellants- assessees were admitted vide order dated 2nd December, 2009 to consider the following substantial questions of law: a) Whether the Tribunal is right in law as held by the Hon ble Supreme Court of India in the matter of Jayaswals 2 Neco Limited V/s. CCE, Nagpur reported in 2006 (73) RLT 230 (SC), Appeal Precedent  Tribunal in earlier case held that inserts for railways sleepers requiring precision machining were not eligible to exemption under Notification No.223/88-CE succeeded by Notification No.275/99-CE-Department having accepted principle laid down in earlier case, cannot be permitted to take different stand. Judicial discipline  if co-ordinate Bench of Tribunal disagrees with test laid down in earlier case, then it should refer the matter to Larger Bench and refrain from taking upon itself not to follow such decision and take a contra view to avoid uncertainty and confusion. b) Whether the Tribunal is right to distinguish the Hon ble Tribunal Order bearing No.A/104 to 107/WZB/2004/C-1 dated 4-2-2004, where options to redeem gold have been given holding the same to be non-prohibited items. Despite this given a findings the gold is now allowed subject to conditions and restrictions and is to be treated has prohibited goods relying upon Supreme Court Judgment of Shaikh Mohammed Umer reported in 1983 ELT 1439 Supreme Court, after total abolishing the gold control order in the year of 1990. The gold biscuits are not at all prohibited goods after liberalization of import policy. c) Was the CESTAT justified in passing order of absolute confiscation of 11 Gold bars on 5th July, 2005 after a delay of almost six months from the date of hearing on 25th January 2005. 2. The above appeals were finally heard by this court on 28th January, 2010. During the course of hearing, one of the contentions raised by the learned counsel appearing for the appellant related to third 3 question extracted hereinabove in addition to the submissions made on first two questions. 3. This Court, prima facie; thought that the impugned order was passed by the Customs, Excise and Service Tax Appellate Tribunal ( Tribunal for short) practically after a period of six months from the date of hearing, as such it should be set aside without examining merits or demerits thereof and the appeal be restored to the file of the Tribunal for de novo hearing and decision afresh in view of the judgment of the Apex Court in the case of R.C.Sharma v. Union of India, 1976 (3) SCC 474 and Anil Rai v. State of Bihar, AIR 2001 SC 3173 followed by this Court in the case of Dewang Rasiklal Vora v. Union of India, 2003 (158) ELT 30 (Bom.); wherein it was held that the judgment passed after considerable gap of time from the date of hearing was liable to be set aside observing that justice should not only be done but must manifestly appear to be done. 4. The aforesaid proposal was put to the learned counsel appearing for the Revenue to which there was no opposition. Consequently, the advocates appearing for the parties were directed to file minutes of order looking to the consensus between them. Accordingly, minutes of order dated 28th January, 2010 duly signed by the counsel appearing for the appellant and counsel appearing for the Revenue were produced before us. Once the minutes of order is filed, considering the consensus between the parties, the usual order taking the minutes on record and disposing of appeal on the terms thereof follows. 4 5. In the case in hand, when the minutes of order were presented for acceptance of Court, this Court was surprised to read para-3 of the minutes of order reading as under: 3. Question of Law No.(b) and (c) are answered in favour of the Appellants. 6. The aforesaid minutes of order were not as per the consensus reached between the advocates appearing for the rival parties. Consequently, advocates appearing for the parties were asked as to how para-3 was inserted in the minutes of order showing that question Nos.(b) and (c) are answered in favour of the appellants, especially, when the appeal was not be decided on merits and the impugned order was to be set aside without examining the merits or demerits thereof merely on the ground of delayed judgment by the Tribunal. 7. Both advocates submitted that by mistake para-3, showing that question Nos.(b) and (c) are answered on merits, was inserted in the minutes of order. The explanation is not acceptable to this Court. It appears that advocates took chance before this Court to get the appeal disposed of on merits. An attempt on the part of the advocates was to take the Court for ride at the cost of Revenue. 8. The advocate signing the minutes of order on behalf of Revenue was expected to be more diligent considering the fact that he was representing Union of 5 India. It was obligatory on his part to protect the interest of the Revenue. Both advocates tried to tender their apology which this Court refused to accept finding, prima facie; that it was not a bonafide mistake. In both appeals, the question revolves around confiscation of 11 Gold bars. One can conveniently imagine the stakes involved. Obviously, in this backdrop, this Court refused to accept the minutes of order. Accordingly, the same stands rejected. However, for the purpose of record they are being retained on record and marked `X for identification. 9. Having rejected the minutes of order, this Court is left with the job of deciding appeal finally. Having heard both parties, it is not in dispute that the appeal was heard by the Tribunal on 25th January, 2005 whereas judgment appears to have been passed on 5th July, 2005 which is a subject matter of this appeal, which is evident on the face of record itself. 10. The Apex Court in the case of R.C.Sharma v. Union of India (supra) was pleased to hold that delayed delivery of justice results in manifest injustice and results in denial of justice. In the very same appeal it was argued that some contentions raised by the appellant before the Tribunal were not considered. In this view of the matter, without examining merits or demerits of the impugned order, the said order is being set aside on the ground of delayed delivery of judgment leaving all other questions open for being argued afresh before the Tribunal. 6 11. In the above backdrop, question No.(c) is, accordingly, answered holding that the Tribunal was not justified in passing the order after a delay of almost six months from the date of hearing. Impugned order dated 5th July, 2005 is set aside. Appeals are restored to the file of the Tribunal with direction to hear and decide the same on their own merits by a reasoned order following principles of natural justice. In the result, both appeals stand allowed with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)