IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.313 of 2005 LALIT KUMAR DUTTA, SON OF LATE SHRI NARAYAN DUTTA, R/O TUMARI TOLA, WARD NO.5, AT AND P.O.AND P.S.RAXAUL, DISTRICT EAST CHAMPARAN CUSTOM HOUSE AGENT NO.4/CHA/99, LAND CUSTOM STATION, RAXAUL. ..APPLICANT/APPELLANT Versus 1. UNION OF INDIA. 2. THE COMMISSIONER (APPEAL) CUSTOM & CENTRAL EXCISE, C.R.BULDING, B.C. PATEL PATH, PATNA. 3. THE JOINT COMMISSIONER CUSTOMS, C.R. BUILDING B.C.PATEL PATH, PATNA. 4. THE DEPUTY COMMISSIONER, LAND CUSTOM STATION, AT & P.O. & P.S. RAXAUL, DISTRICT EAST CHAMPARAN. ….RESPONDENTS/RESPONDENTS ---- For the Appellant : Mr. Ved Prakash Srivastava, Advocate. For the Respondents :Mrs.Nivedita Nirvikar & :Mrs.Archana Sinha ---- 07. 04.12.2009 Heard Mr. Mahesh Narain Parbat for the appellant, and Mrs. Nivedita Nirvikar for the respondents. This appeal is directed against the order dated 13.12.2004, passed by the learned Custom Excise & Service Tax Appellate Tribunal, Eastern Bench, Kolkata, in Miscellaneous Application No. 297 of 2004, whereby the Tribunal has declined to set aside the order dated 14.06.2004, passed in Appeal No. 139/03, whereby the appeal stood dismissed for non-prosecution. While pressing this appeal, learned counsel for the appellant submits that failure on the part of learned counsel for the appellant to appear on 05.05.2004 led to his non- appearance on 14.06.2004, resulting in dismissal of the appeal. He next submits that a Division Bench of this Court has allowed Misc. Appeal No.314 of 2007, passed on 06.02.2009, whereby identical order of dismissal with respect to an analogous appeal - 2 - has been set aside by this Court. Learned counsel for the respondents opposes this appeal and submits that it is a case of negligence. On a perusal of the materials on record and on consideration of submissions of the learned counsel for the parties, it appears to us that it would be an appropriate exercise of discretion to set aside the impugned order. The same is accordingly set aside and the appeal pending before the Tribunal is hereby restored to its file This appeal is accordingly allowed. hr ( S. K. Katriar ) ( Kishore K. Mandal )