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Vishnu Choitram Bhatia Versus Union of India & 2

2015 (9) TMI 923 - GUJARAT HIGH COURT

Waiver of pre deposit - Tribunal restored the appeal of the co-applicants but refused in case of the petitioner - earlier the appeals were dismissed for non-compliance of order of pre deposit - Held that:- On a perusal of the common order dated 07.07.2010 made by the Tribunal on the stay applications made by the petitioner and other co-appellants, including M/s Bhairavi Exim Pvt. Ltd., it is clear that the Tribunal had directed the appellant - M/s Bhairavi Exim Pvt. Ltd. to deposit 50% of the du .....

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Tribunal, the Tribunal by an order dated 14.02.2011, had restored their appeals by observing that the stay petitions of the applicants had been unconditionally allowed. The petitioner herein is similarly situated to the said applicants in the stay applications and therefore, was entitled to similar treatment on the ground of parity. The Tribunal was, therefore, not justified in rejecting the application for restoration made by the petitioner by holding that the stay granted in favour of the pet .....

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ent : Ms Amee Yajnik, Adv ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1. Rule. Ms. Amee Yajnik, learned senior standing counsel waives service of notice of rule on behalf of the respondents. 2. Having regard to the controversy involved in the present petition which lies in a very narrow compass, with the consent of the learned counsel for the respective parties, the matter was taken up for final hearing today. 3. The facts stated briefly are that against a common orderin- original dated .....

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appellant - M/s Bhairavi Exim Pvt. Ltd. to deposit 50% of the duty within a period of eight weeks from the date of receipt of the order, subject to which the predeposit of balance amount of duty and entire penalty would stand waived during the pendency of the proceedings. As regards the co-appellants including the petitioner, who are brokers, textile consultants, recipients of raw material, high sea sellers, directors and employees of the company, the Tribunal dispensed with the condition of pre .....

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informed that upon verification of the record, it was found that Appeal No.C/488/2009 filed by the petitioner had been decided by the Tribunal by an order dated 28.09.2010. The record of the present petition reveals that by an order dated 28.09.2010, the Tribunal had dismissed the appeal preferred by M/s Bhairavi Exim Pvt. Ltd. for non-compliance of the provisions of section 129A of the Customs Act, inasmuch as, it had not made pre-deposit as directed by the Tribunal. In view of the above commu .....

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ent petition. 4. Mr. Hasit Dave, learned advocate for the petitioner assailed the impugned order by pointing out that in the order dated 21.06.2010 made on the stay applications filed by the petitioner and other co-appellants, except for the direction to M/s Bhairavi Exim Pvt. Ltd. to make pre-deposit of 50% of duty, qua the other co-appellants, no direction to make pre-deposit had been issued. The attention of the court was further invited to the order dated 14.02.2011 made by the Tribunal in t .....

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the dismissal of their appeals for non-compliance was not in accordance with law. It was submitted that the petitioner is identically situated to the said co-appellants and that no order of pre-deposit having been made in the case of the petitioner, the Tribunal was not justified in not restoring the appeal of the petitioner and that there is a clear discrimination between two appellants on identical facts. 5. On the other hand, Ms. Amee Yajnik, learned senior standing counsel for the responden .....

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itioner are concerned, the condition of pre-deposit of penalties had been dispensed with. It appears that the appeals preferred by all the appellants had been dismissed for non-compliance of the stay order in view of the fact that M/s Bhairavi Exim Pvt. Ltd. had not made the pre-deposit of 50% of the duty. However, in case of other co-appellants who had earlier approached the Tribunal, the Tribunal by an order dated 14.02.2011, had restored their appeals by observing that the stay petitions of t .....

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