The appellant moved an application along with the urgent hearing as well as stay application. The learned Advocate for the appellant, contended that during the hierarchy of the customs before the Additional Collector of Customs as well as the Collector (Appeals), the subject matter pertains legal and factual controversy are not be taken up in accordance with the law but on the contrary the case was decided arbitrarily without applying his judicious mind only on the principle of mutatis mutandis and disposed of the matter without discussing the factual as well as the legal controversies as placed by the appellant's advocate orally or in writing.
2. In the light of the observations made by the Hon'ble High Court with that particular points of mutatis mutandis in their judgment 201.1 PTD 2849, observed that the customs authorities are required to pass separate orders in each case and the litigant had a right to contest their case, which should be disposed of on its legal and factual positions separately. The concept of mutatis mutandis was depreciated by the said observation.
3. The Hon'ble High Court in Suit No. 461 of 2012 interpreted the legal controversy with pursuant of section 195-B of the Customs Act, 1969 that the Collector has wrongly refused to exercise the jurisdiction that vested in him under section 195-B and has in fact condemned the plaintiff (appellant in present case) un-heard which appears to be completely contrary to the law and has no such jurisdiction, which requires to be exerciser and as such the order is without jurisdiction.
4. Keeping in view the said observations as well as the orders passed during the hierarchy of customs, and as such the action taken by the respondent against the appellant in the subject pending appeal is violative with regard to the section 194-B subsection (1). The appellant has established the prima-facie case balance of convenience is also in favour of appellant which should also cause irrecoverable loss to the appellant.
5. Under the said circumstance, we are of the view that the respondents should not take any coercive action against the appellant till the next date of hearing. Issue notice to the hearing on 19- 6-2012. .