(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has approached at a stage where the Department had issued only a show cause notice dated 20.7.2005, as at Annexure “A” to the petition. The only final prayer in the petition, therefore, is to set aside such show cause notice. It appears that at one stage, this petition was dismissed for default on 2.5.2011. Subsequently, the same was restored by an order dated 2.9.2011 passed in Miscellaneous Civil Application No.1822 of 2011.
2. Counsel for the petitioner submitted that after the petition was dismissed, department authorities re-activated the show cause notice proceedings which had remained dormant for a long time. Once the petition was restored, the petitioner represented the authorities not to proceed further in view of the pendency of this petition. Ignoring such pleas, adjudicating officer completed the proceedings without any further intimation to the petitioner and passed a final order dated 17.4.2012.
3. It is not in dispute that such order came to be challenged by the petitioner by filing Special Civil Application No.8906 of 2012. However, counsel fairly stated that such petition was withdrawn for filing department appeal. Accordingly, such appeal is also filed.
4. In view of such developments, we are not inclined to entertain this petition which is directed only against the show cause notice which also stands now adjudicated and against the final order of adjudication, an appeal also has been filed which is pending.
5. Counsel for the petitioner, however, vehemently contended that the notice itself is without jurisdiction, that while releasing the goods of the petitioner by an interim order dated 30.8.2005, this Court had relied on the stand of the Department taken in the affidavit dated 30.8.2005 and in the process, recognized the validity of certificate issued by Bhabha Atomic Research Centre. He, therefore, submitted that the adjudicating authority could not have thereafter ignored such a certificate and confirmed the duty demand.
6. We are of the opinion that such issues can as well be gone into by the appellate authority. It would not be appropriate on our part to express any opinion on such aspects.
7. Counsel for the petitioner, however, submitted that the appellate remedy is onerous since the petitioner would be required to make pre-deposit of the duty demand confirmed. The appellate authority, in our opinion, has ample power to consider all aspects while deciding the question of pre-deposit. Surely, in the application of the petitioner for waiver of pre- deposit, all relevant aspects will be borne in mind. With respect to any of these, we do not express our opinion.
8. In view of above, the petition is disposed of. Rule is discharged.
[AKIL KURESHI, J.] [HARSHA DEVANI, J.] parmar*