1 3. D.B. CIVIL WRIT PETITION NO.6319/2006. Aditya Cement (A Unit of Grasim Industries Ltd.) Vs. Union of India & Anr. Date of Order : 27th April 2007. HON'BLE MR. JUSTICE P.B. MAJMUDAR HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Dinesh Mehta, for the appellant. Mr. V.K. Mathur, for the respondents. .. At request and with the consent of learned counsel for the parties, the matter has been heard finally at this stage. By filing this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner company has challenged the order dated 11.10.2006 passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur whereby the appellate authority has asked the petitioner to deposit an amount of Rs.20,00,000/- as pre-deposit for entertaining the appeal. It is submitted by learned counsel Mr. Dinesh Mehta that on the day the matter was fixed for hearing before the appellate authority for consideration of the application for waiving the condition of pre-deposit, learned counsel representing the petitioner company was out of station and therefore, he could not remain present and, therefore, request for adjournment was made. However, the appellate 2 authority rejected the said request of the petitioner and passed the impugned the impugned order asking the petitioner company to deposit Rs.20,00,000/- towards pre-deposit. It is submitted that the petitioner company has a good case on merits and the point in issue is covered by the judgment of the Hon'ble Supreme Court in the case of Vikram Cement Ltd. [2006 (194) ELT 3]. On the other hand, learned counsel Mr. V.K. Mathur appearing for the respondents submitted that simply because a motion for adjournment was made, the appellate authority was not bound to adjourn the matter and in discretion the appellate authority has proceeded ex parte by not giving the adjournment to the petitioner. We have heard the learned counsel appearing for the respective parties and examined the record. It is not in dispute that the order impugned in this writ petition is an ex parte order and, therefore, the petitioner Company could not convince the appellate authority about the merits of the case. Considering the said fact of the matter, in our view, instead of remanding the matter for deciding the issue of pre-deposit again, it would be just and proper and in the interest of justice to direct the petitioner to deposit Rs.11,00,000/- (Eleven lacs) in all towards the condition of pre-deposit for entertaining the appeal pending before the appellate authority. 3 Learned counsel Mr. Dinesh Mehta appearing for the petitioner submits that the petitioner will deposit the said amount before the appellate authority within one month from today. On such deposit, the appellate authority shall proceed with the appeal on its own merits and decide the same in accordance with law. However, in the event of petitioner's failure to deposit the amount of Rs.11,00,000/- within stipulated time, the proceedings may be treated to be terminated finally. We further clarify that this order shall not be treated as a precedent in any other case as this order is passed in peculiar facts of this case and specially in view of the fact that the order impugned is an ex parte order by which the petitioner was denied the opportunity to address the appellate authority in the matter. As a result of the aforesaid discussion, the writ petition is allowed to the extent indicated above; the impugned order asking the petitioner to deposit Rs.20,00,000/- towards pre- deposit is substituted by the requirement upon the petitioner to deposit an amount of Rs.11,00,000/- towards pre-deposit within the stipulated time indicated in this order. There shall be no orders as to costs. (DINESH MAHESHWARI), J. (P.B. MAJMUDAR) ,J. Mohan/