Judgment:
1. Rule, returnable forthwith. Respondents waive service.
2. The petitioners' appeal was dismissed by the Collector of Central Excise and Customs on the ground of delay and without going into the merits. Against the Collector's order the petitioners preferred appeal to the Tribunal i.e. CEGAT. The Tribunal declined stay of the order of deposit of the disputed amount of Rs. 2,07,000/-.
3. I have heard Counsel on either side. I have also through the order of the Collector as also that of the Tribunal. There is no dispute that there was delay in filing the appeal before the Collector. This, however, is not a case where the Collector should have dismissed the appeal on the ground of delay and without going into the merits. The Collector could as well have put the petitioners on terms on the question of condonation of delay. In matters of delay, there is normally some sort of negligence on the part of the litigant but payment of costs to the other side, by and large, meets the ends of justice, while at the same time providing the appellant an opportunity of having his appeal heard on merits and in accordance with law. I am inclined to follow the said course.
4. In the aforesaid view of the matter, the appeal before the Tribunal would no longer survive. On the question of stay also I have heard Counsel on either side. Considering the facts and circumstances, I am inclined to direct deposit of Rs. 1,00,000/- and bank guarantee for the remaining Rs. 1,07,000/- as per directions in the final order below.
5. Hence Order :
(a) The petition is allowed. The impugned order, Exhibit E, of the Collector of Central Excise and Customs (Appeals), Bombay as also the order dated 13th September, 1989, Exhibit F, of the Tribunal are both set aside and the petitioners' appeal before the Collector of Central Excise and Customs (Appeals), Bombay, is restored to file before him, and delay therein stands condoned.
(b) If the petitioners' deposit with the Assistant Collector of Central Excise, Amravati, Rs. 1,00,000/- and furnish in his favour bank guarantee of a nationalised bank in the sum of Rs. 1,07,000/- by 15th February, 1990, the Collector of Central Excise and Customs (Appeals), Bombay, will then hear the petitioners' aforesaid appeal on merits and in accordance with law. It is made clear that there will be no further extension of this time to deposit and to furnish bank guarantee.
(c) In the event, however, of the petitioners' not complying with the aforesaid condition of deposit and bank guarantee latest by 15th February 1990, the Collector of Central Excise and Customs (Appeals), Bombay, shall then dismiss the petitioners' appeal.
(d) In view of the above order and directions, the petitioners' pending appeal before the Tribunal i.e. CEGAT should be disposed of by the Tribunal without any orders.
(e) Rule is made absolute in terms aforesaid but, in the circumstances, the petitioners are directed to pay to the respondents costs of this petition quantified at Rs. 500/-.