1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION WRIT PETITION NO. 7522 OF 2009 M/s Kay Bouvet Engineering Pvt. Ltd. .. Petitioners V/s Union of India & Ors. .. Respondents Mr. V.R. Nankani with Mr. M.R. Baya for the petitioners. Mr. R.V. Desai, Senior Advocate with Mr. R.B. Pardeshi and Mr. J.B. Mishra for the respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATE : 1ST OCTOBER 2009 P.C. : 1. Rule. Heard forthwith. 2. In a pending appeal, the petitioners have applied for waiver of pre­ deposit. The learned Tribunal by its order dated 17th September 2009 was pleased to direct the petitioners to pre­deposit a sum of Rs.2 crores towards duty and waived the balance amount of duty together with interest and penalties. The petitioner thereafter applied for modification of the order. By an order dated 24th June 2009 which, according to the petitioners, was communicated to them on 6th August 2009, the learned Tribunal was pleased 2 to reject the application for modification. It was observed by the learned Tribunal that the petitioners were called upon to pre­deposit Rs.2 crores only against the total amount of Rs.10.24 crores confirmed by the Commissioner and that works out to less than one fifth of the amount. 3. Being aggrieved by the aforesaid order, the petitioners approached this Court and filed the petition on 28th August 2009. The matter came up before this Court on 1st September 2009, which was the last date for compliance of the order. The Tribunal on 1st September 2009 dismissed the appeal for non­ compliance even though the Tribunal was informed that the matter was pending before this Court on that day. 4. The petitioners thereafter amended the petition and have also challenge the order of dismissal of appeal. 5. On behalf of the petitioners, their learned counsel submitted that the initial order was to deposit only one fifth of the amount as set out in the order of the Tribunal. In our opinion, that is a total misreading of the application. While rejecting the application for modification, the learned Tribunal only noted that the total amount of duty with penalty would work out to over Rs.10 crores. We therefore find no substance in the said contention. It was then submitted that the price realised was based on the 3 contract value which was based on an open tender. It was submitted that in respect of some other inputs (items which were not manufactured by the petitioners), prices were to be approved by the authorities of the State of Karnataka in terms of the notification in force. Next it is submitted that insofar as the items procured from the unit in Goa is concerned, excise duty of Rs.1.02 crores had been paid and that was also taken into consideration. Lastly it is submitted that the petitioners have a strong prima facie case and the order of pre­deposit of Rs.2 crores would cause undue hardship to the petitioners. 6. On the other hand, on behalf of the respondents their learned counsel submitted that no fault can be found with the order of the Tribunal. It was submitted that the matter pertains to appreciation of facts and therefore this Court should not interfere with the impugned order. 7. Having heard the learned counsel for the parties and considering the judgment of the Supreme Court in Collector of Central Excise v. Guru Nanak Refrigeration Corporation, (2003) 4 SCC 334 as also considering that the price was fixed in terms of the contract, the petitioners have made out a strong prima facie case. Considering the contention advanced of hardship, as the sum of Rs.1.02 crores which has been considered as part of the duty to be paid by the petitioners herein has already been paid by the vendor, in our 4 opinion, ends of justice would be met if instead of Rs.2 crores the petitioners are called upon to pre­deposit Rs.1 crore within 12 weeks from today. On such deposit, the impugned order dismissing the appeal shall stand set aside and the order of the Tribunal shall stand modified to that extent. On failure to deposit, the order to stand confirmed. We may note that it is unfortunate when the Tribunal’s attention was invited that the matter was coming up before the Court that the Tribunal instead of granting some time to the petitioners chose to dismiss the appeal. 8. Rule is made absolute accordingly with no order as to costs. (D.G. KARNIK, J.) (F.I. REBELLO, J.)