1 CEXA NO.103/10. lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.103 OF 2010 Mahindra and Mahindra Ltd. : Appellant. versus The Commissioner of Central Excise Mumbai-V : Respondent. Mr.Sridharan a/w Mr. Prakash Shah i/by PDS Legal for the Appellant. Mr. A S Rao for the Respondent. CORAM : J P DEVADHAR AND R M SAVANT, JJ. DATED : 09th December 20 10 P.C. Heard Perused Appeal. 2 The Appeal is admitted on the following substantial questions of law:- “1. Whether the CESTAT is justified in declining to grant full waiver of pre-deposit and direct the Appellant to deposit a sum of Rs.7.5 crores for entertaining the Appeal.? 3 By consent of the Parties, the Appeal is taken up for final hearing. 4 Perusal of the order of the Tribunal shows that out of the demand of Rs. 40 crores, the Tribunal has prima facie found that the demand of about Rs.25 crores relating to the credit of input duty on the tractors exported by the Appellant, is untenable in view of the decision of this Court in the case of Repro India Ltd. vs Union of India and ors reported in 2009(235) ELT 614. 2 CEXA NO.103/10. 5 As regards the balance demand of Rs.15 crores is concerned, the Tribunal has recorded a statement of fact that in spite of the prohibition from paying duty on the parts of tractors manufactured and captively consumed in the manufacture of tractors, the Appellant has in fact paid excise duty on the parts of tractors and taken credit thereof wrongly/illegally. 6 If the duty is illegally paid on the parts, then such a duty paid illegally would have to be refunded. In such a case, even if the credit of duty taken is illegal, there would be no question of securing the duty amount because admittedly, the duty has been paid by the Appellant though illegally. It is not the case of the Revenue that the duty paid by the Appellant has been refunded. 7 In these circumstances, in our opinion, the Tribunal was not justified in directing the Appellant to make a pre-deposit of Rs.7.5 crores. Accordingly, the impugned order dated 30th July 2010 passed in Stay Application No.E/Stay/976/09 in Appeal No.E/675/09 and in Stay Application No.E/Stay/1790/09 in Appeal No.E/1190/09 is quashed and set aside. The Tribunal is directed to dispose of the said Appeal on merits without requiring the Appellant to make any pre-deposit. In view of the fact that the aforesaid appeals are pending for quite a long time, the Tribunal is directed to dispose of the said appeals as expeditiously as possible. This appeal is disposed of in the above terms. [R.M.SAVANT, J] [J P DEVADHAR, J]