1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7952 OF 2009 M/s.NSSL Limited .. Petitioner versus Union of India & ors. .. Respondents ... Mr. V. Sreedharan with Mr.Gajendra Jain and Mr.Jeetu Motwani i/b M/s.PDS Legal for the petitioner. Mr. P.S. Jetly with Mr.J.B. Mishra for respondents. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 16th September 2009 P.C:- 1. Rule. Heard forthwith. 2. The petitioners are aggrieved by the order of the Tribunal dated 11 th August 2009 whereby the petitioners have been called upon to pre-deposit Rs.50 lakhs towards duty within eight weeks and report compliance. 2 3. It is the case of the petitioners that one Jayaswal Neco Ltd, a sister company manufactures castings. After the castings are manufactured, the goods are given to the petitioners on what they do the work of machining and also fit in the various items sent to them by the customer. The said finished goods is then exported as cylinder heads as per the various shipping documents against which full amount has been realized by the petitioner. 4. The stand of the respondents is that in the document styled as “A.R.E” the goods were described as castings. Based on this, show cause notice was issued contending that no export had taken place and consequently the petitioners had to pay the entire duty on the said goods. As the order was passed by the Commissioner, First Appeal was preferred before the learned Tribunal where the learned Tribunal has passed the order which is the subject matter of the present petition. 5. There is no dispute that the goods were taken out from the premises of the petitioners duly sealed by the proper Officer of Central Excise. There is also no dispute that the goods have been certified to have been exported after proper authorization by the proper customs 3 officer. There is also no dispute that the petitioners have received the export price. 6. In these circumstances, the only question what remains is the misdescription in some of the documents. The same misdescription may have continued for a longer period of time. Can that result in holding that there was no export which otherwise, was supported by documentary evidence. 7. In our opinion, considering the facts on record, the petitioners have established a strong prima facie case. Therefore calling on the petitioners to make any deposit would be causing undue hardship by itself. {See B.M. Malini Vs. Commissioner of Income Tax (2008) 306 ITR 196 (SC)}. 8. In the light of that, impugned order is set aside. The appeal to proceed with without any deposit. Rule made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. (D.G. KARNIK, J) (F.I. REBELLO, J)