2015 (2) TMI 264

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....titioner was the appellant in Appeal No. 567/1985 on the file of the Custom Excise & Gold (Control) Appellate Tribunal (West Zonal Bench), Mumbai. The writ petition was filed praying for the following reliefs : "a) to issue a writ of mandamus or other appropriate writ, direction or order directing the second respondents to grant leave to constitute fresh appeal and to consider the same within a short period and dispose of the appeal No.567/1985 pending before them. b) to issue a writ of certiorari or other appropriate writ, direction or order calling for the records relating to the appeal No.567/1985 pending before the second respondent, the order of penalty against which the appeal emerged. bb) To issue a writ of certiorari or other app....

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....el for the respondent/writ petitioner submits that the writ petitioner has already made statutory deposit of Rs. 10,000/- as was already permitted by the appellate Tribunal and now the appeal has been reconstituted and has already been numbered. 7. We have considered the submissions of learned counsel for the parties and perused the record. The operative portion of the order which was passed by the Appellate Tribunal, dated 25.4.1985 was as follows : "In view of my above findings, I order : I under section 111(d)(i) and (m) of Customs Act, 1962 to be read with section 3(2) of Import and Export (Control) Act, 1947 and section 1391) of Foreign Exchange Regulation Act, 1973 order absolute confiscation of 51/2 gold bars of Foreign origin wei....

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....uch deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such appliciation within thirty days from the date of its filing." 8. Present is a case where the Appellate Tribunal exercising power under the proviso has dispensed with deposit subject to conditions as laid down in the order. One of the submissions raised by the learned counsel for the appellant is that learned Single Judge committed error in relying on the jud....