2010 (4) TMI 651

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.... 2, one of its directors, have prayed for a direction upon the customs authorities to act in terms of the Order-in-Appeal No. KOL/CUS/CKP/631/2009 dated 10th November 2009 passed by the Commissioner of Customs (Appeals). 3. Facts relevant for adjudication are that the petitioner had challenged the order dated 25th April 2007 passed by the learned Customs, Excise and Services Tax Appellate Tribunal, Kolkata by filing a writ petition being W.P. No. 800 of 2007, Karan Exports (India) Pvt. Ltd. v. Union of India and Others (for short 'the said writ petition'). The said writ petition was disposed of on 22nd May, 2009 by passing an order, the relevant portion of which is as under : "Having heard the learned advocates for the parties s....

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....eafter. Further, in terms of the Hon'ble High Court order, the bank guarantee was required to be kept alive till the decision and communication of the order by the Commissioner (Appeals). Thus, the bank guarantee is required to be returned to the appellant after the receipt of this order by the appellant. 6. The appeal is disposed of in the above terms." 5. Pursuant to the order passed by the Commissioner of Customs (Appeals) the petitioner by letter dated 16th November 2009 requested the customs authorities to act in terms of the said order and release the bank guarantee. Since it was not done, letters dated 18th November 2009 and 19th November 2009 followed. Thereafter, on 23rd November 2009 the Assistant Commissioner (E....

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....a : 1992 (62) E.L.T. 713 (Cal), Pankaj Guljarilal Gupta v. Collector of Customs, Calcutta : 1995 (75) E.L.T. 47 (Cal.) and in Union of India v. Ramlakshi Finance Corporation Ltd : 1991(55) E.L.T. 433 (S.C.) it has been submitted that mere filing of revisional application before the appropriate authority cannot make an order inoperative. Submission is in view of the settled position of law, appropriate order may be passed directing retest of the goods and for return of the bank guarantee. 8. Learned advocate appearing on behalf of the department relying on the affidavit-in-opposition, has submitted that since revisional application has been filed to protect the interest of the Revenue and same is pending, no order may be passed. On ....

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....iled and neglected to give reply to the letters requesting to retest the goods and for return of the bank guarantee as directed by the Commissioner of Customs (Appeals) and as the revisional application under Section 129DD of the Act filed out of time is yet to be regularised, in my view, the action of the Assistant Commissioner of Customs, (Export) Air Cargo Complex, NSCBI Airport, Kolkata, respondent No. 5 in issuing the letter dated 23rd November, 2009 cannot be sustained and is, thus, set aside and quashed. Hence, the respondent Nos. 3 to 5 are directed to retest the goods and to return the bank guarantee to the Vice-President, Ing Vysya Bank Limited, Middleton Street Branch, Kolkata-700071, the respondent No. 6 and the respondent No. 6....