:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2819 OF 2006 M/s.I.G. Petrochemicals Ltd. & Ors. ....Petitioners V/s. The Union of India & Ors. ....Respondents Mr.Mohan Jaykar i/b Khaitan & Jaykar for the Petitioners. Mr.M.I. Sethna, Senior Advocate with Mr.J.B. Mishra i/b Rutuja Ambekar for Respondents. CORAM : V.C. DAGA & K.K. TATED, JJ. DATE : 26TH MARCH, 2010. P.C. :- 1. Heard. Perused petition. 2. Rule, returnable forthwith. Mr.Sethna, learned Senior Counsel with Mr.Mishra waives service for the Respondents. 3. Heard finally by consent of the parties. THE FACTS: 4. This Petition is directed against the orders dated 25.7.2006 and 25.9.2006 passed by Respondent No.2 – Tribunal. The order dated 25.7.2006 directing pre-deposit in the sum of Rs.5.00 crores within a period of eight weeks. The Petitioners could not comply with the said direction, with the result, the Tribunal was pleased to dismiss the appeal vide its order dated 25.9.2006. That is how both these orders are the subject matter of challenge in this Petition filed under Article 226 of the Constitution of India. :2: SUBMISSION: 5. The learned Counsel appearing for the petitioners raised following three contentions: a) The show cause notice did not justify invocation of proviso to Section 11A of the Customs Act. Hence, both the show cause notices are barred by limitation. b) Notification bearing No.23/2003-Customs dated 31st March,2003 came into operation w.e.f. 1st April, 2003 as such there could not have been demand against the petitioners through subject show cause notices for the period from May,2000 to June, 2003, since the subject Notification did not have a retrospective effect. c) The Tribunal did not consider the existence of prima facie; case and balance of convenience which is squarely in favour of the petitioners. 6. Mr.Jaykar, while elaborating the aforesaid submission took us through the contents of the show cause notices to demonstrate absence of averments so as to justify invocation of proviso to Section 11A of the Customs Act. He also took us through Notification dated 31st January, 2003, which, unequivocally, shows that it came into effect from 1st April, 2003. Mr.Jaykar also tried to demonstrate a prima facie; case in his favour even on merits. PER CONTRA: 7. Mr.Sethna, learned Senior Counsel appearing for the Revenue tried to justify the impugned order of the Tribunal and went on to contend that this Court, being a Writ Court, is expected only to consider as to whether or not the impugned order is perverse or whether any relevant consideration has been excluded by the Tribunal while deciding the issue of pre-deposit. He submits that no such case is made out. He further went on to submit that the very fact that the petitioner has deposited a sum of Rs.2.5 crore during the :3: pendency of the petitioner that itself shows that the petitioners have accepted the impugned order of the Tribunal. As such, the petitioners are estopped from challenging the said order in the writ jurisdiction of this Court. CONSIDERATION: 8. Having heard rival contentions, this Court has to examine the validity of the impugned order on the touchstone whether prima facie case is made out for dispensing with the pre-deposit. 9. The Apex Court, in the case of Martin Burn Ltd. Vs. R.N.Banerjee AIR 1958 SC 79. (Para 27), ruled as under: 27. “.................................. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence...................................” 10. Reading of the aforesaid extracted portion would unequivocally goes to show that the petitioners are not required to make out an iron cast case. Considered from this angle, two issues raised by Mr.Jaykar; one relating to non applicability of proviso to Section 11A of the Customs Act and prospective operation of the Notification dated 31st March, 2003 are strong enough to conclude that the petitioners have made out a prima facie case including balance of convenience in their favour. 11. In the case of Union of India & Anr. Vs. Adani Exports Ltd. & Anr. 2007 AIR SCW 7134, while considering the question of dispensation of pre- deposit, Apex Court observed that; “The Three aspects to be focused while dealing with such applications are (a) prima facie case (b) balance of convenience and (c) irreparable loss. Even when Tribunal decides to grant full or partial stay it has to impose such conditions as may be necessary to safeguard the interest of revenue. It is held to be imperative. :4: 12. Keeping the above observations in mind and considering the fact that the petitioners have already deposited a sum of Rs.2.5 crore i.e. 50% of the amount directed by the Tribunal by way of pre-deposit, no further amount by way of pre-deposit needs to be asked for from the petitioner. In the above view of the matter, the impugned order to the extent it directs pre-deposit in the sum of Rs.5 crore is modified and the said figure of pre-deposit stands substituted with that of the deposit already made in the sum of Rs.2.5 crores. 13. The Tribunal is expected to decide the appeal with expeditious dispatch at any rate within six months from the date of receipt of copy of this order. All contentions on merits are kept open. The observations, if any, made hereinabove should not be construed as expression of opinion on merits of the matter. 14. By an order dated 22.3.2010, the cost was directed to be paid by the Respondents before the next date. We are informed that the Revenue is going to deposit the amount of costs with the Registry of this Court. In the event of such deposit, the Registry shall transfer this amount to the Original Side Bar Library of this Court. 15. The petition is, thus partly made absolute with no order as to costs. (K.K. TATED, J.) (V.C. DAGA, J.)