PNP 1 WP7675-27.9.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7675 OF 2011 M/s. Tata Bluescope Steel Limited ..Petitioner. versus Union of India and others ..Respondent. ..... Mr. Naresh S. Thacker with Mr. Sushanth Murthy and Mr. Nitya Bagaria i/b Mr. Madhur R. Baya for the Petitioner. Mr. Jitendra B. Mishra for the Respondent. ...... CORAM : DR.D.Y.CHANDRACHUD & A. A. SAYED, JJ. 27 September 2011. P.C. : 1. This Petition arises out of an order of the Commissioner (Appeals), Central Excise, Pune on an application for waiver of pre- deposit under Section 35-F of the Central Excise Act 1944. By his impugned order dated 19 July 2011 the Commissioner (Appeals) has directed the Petitioner to deposit an amount of Rs.20 lacs as against a demand of 10% of the value of the exempted goods, penalty and interest in the amount of Rs.37.96 lacs. 2. The Commissioner (Appeals) has observed that the Petitioner has not reversed an amount equal to 10% of the value of the exempted goods in accordance with Rule 6(6)(i) of the CENVAT Credit Rules 2004 on clearance to SEZ Developers prior to amendment of Rule 6(6) by a notification dated 31 December 2008. During the PNP 2 WP7675-27.9.sxw course of the hearing, learned counsel has placed on the record an order of this Court dated 14 September 2011 in Cummins India Limited v. The Commissioner of Central Excise (Central Excise Appeal (Lodg.) 61 of 2011). During the course of that proceeding, the attention of the Court was drawn to the fact that the Bangalore Bench of the Tribunal has in the case of Sujana Metal Products Private Limited1 taken the view that the amendment made by the notification dated 31 December 2008 is clarificatory and hence retrospective in nature. Since the decision in Sujana Metal Products Private Limited was rendered on 5 September 2011, which was after the order of the Commissioner (Appeals) impugned in these proceedings, we are of the view that the ends of justice would merit acceptance of the plea of the Petitioner that the proceedings be remanded back to the Commissioner (Appeals). In view of the subsequent decision of the Bangalore Bench of the Tribunal, we accordingly set aside the impugned order of the Commissioner (Appeals) and remit the proceedings back to the Commissioner for a fresh decision on the application for waiver of pre-deposit under Section 35-F of the Central Excise Act. All contentions of the parties are kept open. The Petition is accordingly disposed of. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.) 1 AIT 2011-385 CESTAT