Harsha Devani, J.
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 order-in-original dated 15-9-2009 passed by the Commissioner of Central Excise and Customs, Ahmedabad, the petitioner and others, including M/s. Bhairavi Exim Pvt. Ltd., preferred appeals before the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the Tribunal"). Along with the appeals, stay applications also came to be filed. All the stay applications came to be disposed of by a common order dated 7-7-2010 whereby, the Tribunal directed the co-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 pre-deposit 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-deposit of penalties imposed upon them, inasmuch as, it had directed M/s. Bhairavi Exim Pvt. Ltd. to deposit a part of the amount. It appears that M/s. Bhairavi Exim Pvt. Ltd. did not deposit the amount of 50% of duty, as directed by the Tribunal. It appears that by a communication dated 16-7-2014 of the Assistant Registrar of the Tribunal, in connection with the petitioner's letter dated 17-1-2014 regarding filing of miscellaneous application for extension of stay order, the petitioner was 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 28-9-2010. The record of the present petition reveals that by an order dated 28-9-2010, 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 communication of the Registry of the Tribunal, the petitioner made a restoration application before the Tribunal, which came to be rejected by the impugned order dated 4-2-2015 whereby, the Tribunal observed that the pre-deposit of penalties on the co-appellants were waived on condition that the main appellant was directed to make pre-deposit, and that the main appellant having not made pre-deposit, the appeal was rightly dismissed for non-compliance. Being aggrieved, the petitioner has filed the present petition.
4. Mr. Hasit Dave, learned advocate for the petitioner assailed the impugned order by pointing out that in the order dated 21-6-2010 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 14-2-2011 made by the Tribunal in the case of other co-appellants, viz., Shri Sunil Semani, Shri Yogeshbhai Vaidya, Shri Nilesh Bansal and Shri Ilyas Kapadia whereby, the Tribunal had restored their appeals which were dismissed for non-compliance with the provisions of Section 129E of the Customs Act, 1962 read with stay order dated 7-7-2010. It was pointed out that the Tribunal in the said order, has taken note of the fact that the stay order allowed all the stay applications of the applicants therein unconditionally, and that 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 respondents reiterated the contents of the affidavit-in-reply filed on behalf of the respondent No. 2.
6. On a perusal of the common order dated 7-7-2010 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 duty within a period of eight weeks. Insofar as the penalties imposed on the other appellants, including the petitioner 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 14-2-2011, 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 petitioner was conditional upon M/s. Bhairavi Exim Pvt. Ltd. making the pre-deposit. Two similarly situated appellants could not have been treated differently by the Tribunal. Moreover, it is evident that there are two conflicting orders passed by the Tribunal on the same set of facts, the previous one being the order dated 14-2-2011 whereby, the Tribunal had held that the stay applications of the appellants other than M/s. Bhairavi Exim Pvt. Ltd. had been unconditionally allowed, and the present order made against the petitioner wherein, the Tribunal has held that the stay order was conditional upon M/s. Bhairavi Exim Pvt. Ltd. making the pre-deposit. Under the circumstances, the subsequent order of the Tribunal taking a
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view different from the view adopted in the previous order of the Tribunal, hereby the petitioner is not granted parity of treatment with other appellants, cannot be sustained. 7. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order dated 4-2-2015 made by the Tribunal on Application No. C/ROA/15063/2014 rejecting the petitioner's application for restoration of the appeal, is hereby quashed and set aside. The application is, accordingly, allowed and the appeal preferred by the petitioner being Appeal No. C/488/2009 is hereby restored to the file of the Tribunal. Rule is made absolute accordingly. 8. Direct Service is permitted qua respondent No. 3.