JUDGMENT
B.J. Shethna, J.
1. In the first session, when this matter was called out, Mr. Rao for the petitioner had prayed for time on the ground that today he is served with the reply affidavit filed by the learned standing counsel Shri Malkan for the respondents. We have refused the request and the matter was kept after recess at 2.15 p.m. After recess, when this matter was called out, Mr. Rao was not present. However, learned standing counsel Shri Malkan for the respondents was present. He submitted that on the advance copy of this petition being served upon him, he appeared before the learned vacation Judge Shri K.S. Jhaveri, J. on 7-1-2005 and also placed on record the copy of the judgment and order of this court delivered on 10-9-2004 in Special Civil Application No. 11489 of 2004 and submitted that the petition was required to be dismissed in view of the said judgment of this Court. However, in spite of the direct judgment of the Division Bench of this court, the learned vacation Judge on the last day of vacation i.e. 7-1-2005 entertained the petition by issuing notice and making it ……………2005 i.e. today and granted interim order preventing the respondents from taking further coercive action against the petitioner.
2. By way of this petition, the petitioner had initially prayed that the impugned order dated 30-1-2004 passed by the first respondent confirming the demand of duty as per the show cause notice dated 24-6-2002 and other orders dated 14-6-2004 and 3-9-2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zone Bench, Mumbai (for short “the Tribunal”) in the stay applications be quashed and set aside and the learned Tribunal be directed to rehear the stay applications along with the modification application submitted by the petitioner on 3-9-2004 conditionally without insisting for any pre-deposit. From page Nos. 25 and 26 of this petition, it appears that this petition was prepared on 8-12-2004 and affidavit was also to be sworn in on the same day i.e. 8-12-2004 i.e. before winter vacation. At that time, as per the roster, this court was taking up such matters and this court had already dismissed such similar petition i.e. Special Civil Application No. 11489 of 2004 before some time back i.e. on 10-9-2004. It seems that because of that, the petition was not moved before the regular court prior to winter vacation. However, the sitting continued even after winter break and this court was to take up such matters. Therefore, it appears to us that this petition was filed on 6-1-2005 and hurriedly moved on the next date i.e. 7-1-2005 Friday which was the last day of winter vacation by making corrections regarding the date by scoring off 8-12-2004 and correcting it to 6-1-2005 and such affidavit was made on that date i.e. 6-1-2005.
3. We have no reason to disbelieve the statement made at the bar by the Standing Counsel Shri Malkan for the respondents that on 7-1-2005, he had appeared and pointed out the Division Bench judgment of this court in case of Sterlite Industries (India) Ltd. before the learned single Judge but in spite of it, the learned single Judge entertained the petition and granted interim relief in favour of the petitioner.
4. Under the circumstances, it appears that the learned counsel for the petitioner was simply trying to buy time and therefore initially prayed for two weeks time in the morning and when the request was turned down by us, in the second sitting, he did not remain present.
5. Under the circumstances, when the matter is squarely covered by the judgment of this court delivered on 10-9-2004 in Special Civil Application No. 11489 of 2004 against the petitioner, then there is no question of entertaining this petition. Accordingly, this petition fails and is dismissed with exemplary cost of Rs. 5000/- to be paid to the respondent No. 2. Ad interim relief granted earlier stands vacated forthwith. Notice discharged.