Judgment:
Vinod Kumar Gupta, J.
1. The learned Advocate for the parties agree that this Writ application be taken up on day's list and finally disposed of.
2. In this Writ application the petitioner feels aggrieved of the order passed on March 14,1995 by a Division Bench of the Customs Excise and Gold (Control) Appellate Tribunal, East Region Bench, in Appeal No. E. 131 of 1989. This appeal was preferred by the petitioner against an order passed on January 3, 1989 by the Collector of Central Excise, Calcutta. The Respondent No. 2 Tribunal before which the appeal was preferred initially passed an order directing the appellant to deposit a certain sum of money as a pre-condition for staying the order impugned in the appeal. However, because the deposit was not made despite the period prescribed, vide the impugned order passed on March 14, 1995 the appeal was dismissed.
3. I have heard the learned Advocates for the parties and perused the record.
4. Undoubtedly, the Tribunal had passed an order granting a conditional stay to the petitioner as a precondition for staying the exclusion (sic) and implementation of the order passed by the Collector of Central Excise. Undoubtedly also the petitioner-appellant could not comply with that direction and deposit the amount in question. It is because of the non-compliance on the part of the petitioner that the Tribunal dismissed the appeal vide order passed on March 14, 1995. On going through the record of the case I find that the Tribunal had taken a very harsh view of the matter by dismissing the appeal because of non-compliance on the part of the petitioner in making the deposit. In the face of the contentions raised today by the learned Advocate for the petitioner I do tend to agree with the petitioner that at the relevant point of time perhaps it was not possible for the petitioner to have deposited the amount in question and the submissions made by the learned Advocate for the petitioner before the Tribunal for extension of time in making the deposit did deserve consideration on the part of the Tribunal. The order impugned in the petition however suggests that the Tribunal did not consider the request of the petitioner for extending the time for making the deposit. In this view of the matter the petitioner felt prejudice of which ultimately resulted in the dismissal of the appeal. In my view, the dismissal order was not the appropriate course of action. [Dismissal] of the appeal on the ground of non deposit of the amount, in the facts and circumstances of this case was not warranted.
5. For the foregoing reasons I allow this Writ petition and quash and set aside the order dated March 14,1995. Appeal No. E. 131 of 1989 shall stand restored to its original number before Respondent No. 2. The Tribunal shall hear and dispose of the appeal on its merits and in accordance with law. It shall be open to the petitioner to apply for dispensing with the requirement of depositing the amount in question and it shall be entirely upto to the Tribunal to decide the question of any interim relief purely on its merits. Neither the disposal of the appeal nor the consideration of stay matter shall be influenced by any of the observations made in this judgment. No part of this judgment shall be construed as experion of opinion about the merits of the appeal or about any interim relief.
6. There will be no order as to costs.
7. All parties concerned to act on a xeroxed signed copy of this Dictated order on the usual undertaking.