1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7535 OF 2009 Jai Prakash Strips Limited .. Petitioner versus The Union of India & ors. .. Respondents ... Mr. Prakash Shah with Mr.Swapnil Bafna i/b PDS Legal for the petitioner. Mr.P.S. Jetly with Mr.J.B. Mishra & Mr.Rajinder Kumar for respondents. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 29th September 2009 P.C:- 1. Rule. Heard forthwith. 2. The petitioners are aggrieved by the order of the Tribunal dated 24th June 2009 where in the matter of waiver of pre-deposit, the Tribunal has directed the appellant to deposit the entire amount of duty. The matter was heard by the Tribunal pursuant to an order passed by this court in Writ Petition no.5641 of 2008 decided on 4th September 2008. The case of the 2 petitioners before us was that their case was similar to the case of M/s.Ambika Waste Management Pvt.Ltd passed by the Addl. Commissioner of Central Excise & Customs, Aurangabad. The Tribunal directed that the petitioner should deposit a sum of Rs.Two lakhs. The petitioner deposited a sum of Rs.3.90 lakhs. The duty demand was in the sum of Rs.20 lakhs in the like amount. In the case of M/s.Ambika Waste Management, the duty demand was in the sum of Rs.38 lakhs with the petitioner in the like amount. 3. The learned Tribunal after hearing the matter arrived at a conclusion that the case of M/s.Ambika Waste Management was different from the case of the petitioner herein and accordingly, passed the impugned order. 4. When the matter was heard, various orders passed in the case of M/s.Ambika Waste Management Pvt.Ltd were placed before us. We find that the order dated 28th April 2008 referred to by the Tribunal was when an appeal was preferred against the dismissal of the appeal by the Commissioner (Appeals) for failure to deposit the amount. The Tribunal had noted that the Commissioner had not considered the evidence and in these circumstances set aside the order and directed the petitioner to deposit Rs. Rs.10,00,000/- (Rupees ten lakhs). On remand, an order came to be passed on 5th August 2008 whereby the appeal preferred by M/s.Ambika Waste Management was dismissed. Against that order, 3 M/s.Ambika Waste Management preferred an appeal to CESTAT. By an order dated 27th January 2009, the learned Tribunal noted that the appellant before it had already deposited Rs.10 lakhs in the earlier round and in these circumstances, that amount would be reckoned as pre-deposit for the appeals filed before it. We may note that this subsequent order of the Tribunal appears not to have been brought to the attention of the Tribunal. Learned counsel for the petitioner has taken us also through the order of the Commissioner (Appeals) on merits in the case of M/s.Ambika Waste Management Pvt.Ltd. That also is a case of purchasing scrap from the dealers of M/s.Ispat Industries. The issue which arose in that case would thus arise in this case. 5. Considering similar issue, in our opinion, petitioner herein cannot be put in a worse position than in the case of M/s.Ambika Waste Management Pvt.Ltd. The sum of Rs.10 lakhs roughly works upto 1/4th of the amount. The petitioner herein have already deposited 1/4th of the amount. The petitioners therefore had made out a strong prima facie case. Treating the petitioner’s differently by itself would cause undue hardship. 6. One additional fact in this case is that appeal was dismissed when the matter was pending before this court by the Tribunal even when its attention was brought to the fact inspite of that the appeal was dismissed. We are aware that it is open to the Tribunal to dismiss an appeal for non 4 compliance. We are also aware of the fact that it is open to the Tribunal in the absence of pre-deposit by the stipulated date to dismiss the appeal. However,when a party brings to the notice of the Tribunal that an appeal is preferred and is pending judicial exercise to avoid multiplicity of proceedings, would be to grant reasonable time to enable the petitioner to produce an order from this court, and on failure to do so proceed with the matter. Ultimately, the Tribunal is subject to the supervisory jurisdiction of this court. 7. Considering the above facts, the order of dismissal of appeal is set aside. The order of pre-deposit is varied to the extent that the amount already deposited would be considered as pre-deposit. The Tribunal is directed to hear the appeal on merits. 9. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK, J) (F.I. REBELLO, J)