IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7043 OF 2008 WRIT PETITION NO.7043 OF 2008 WRIT PETITION NO.7043 OF 2008 M/s.Clariant Chemicals (India) Ltd. ..Petitioner. V/s. The Union of India & Ors. ..Respondents. Mr.Prakash Shah i/b. PDS Legal for petitioner. Mrs.Masurkar with Ms.Rutuja Ambekar for respondents. CORAM : P.B.MAJMUDAR AND CORAM : P.B.MAJMUDAR AND CORAM : P.B.MAJMUDAR AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 3RD DECEMBER, 2008. DATED : 3RD DECEMBER, 2008. DATED : 3RD DECEMBER, 2008. P.C. :- P.C. :- P.C. :- 1. Heard counsel for both sides. Rule, made returnable forthwith. Mrs.Masurkar, learned counsel waives service for the respondents. By consent of the parties, Petition is taken up for final hearing. 2. By filing this petition, the petitioner is challenging the order dated 24/09/2008 passed by the Commissioner (A), Central Excise, Mumbai, Zone-1, which is annexed at Exhibit "L" at page 138 of the petition. By the impugned order, the petitioner has been asked to deposit Rs.5,00,000/- towards penalty and the balance penalty and interest is waived. 3. It is submitted that prima facie the - = : 2 : = - Tribunal has found that there is no evasion of tax. In this connection, the Commissioner of Appeals has observed as under :- " Taking into consideration the principles laid down on the question of revenue neutrality in 2006(206) E.L.T. 168 Perfect Knitters Ltd. 2006 (205) E.L.T. 773 Incowax Pvt. Ltd. and 2007 (213) E.L.T. 490 (S.C.) CCE vs. Coca-Cola India Pvt. Ltd. I allow waiver of the pre-deposit of duty. However, it is observed that the appellants have not determined the correct duty from the Thane unit and, therefore, for this contravention they appear to be liable to penalty. I, therefore, direct them to deposit Rs.5,00,000/- on this account. The balance penalty and interest is waived under Section 35F. " 4. Considering the said aspect, the waiver of pre-deposit of duty is already granted by the Commissioner (A). In our view, it was not proper to ask the petitioner to deposit Rs.5,00,000/- on the ground that the petitioner have not determined the correct duty from the Thane unit. In our view on merits, the petitioner has an arguable case before the Commissioner (A). Considering the said aspect, in our opinion, the appeal of the petitioner is required to be decided on its own merits without asking him to deposit the amount in question which the Commissioner (A) has directed him to deposit. Under the - = : 3 : = - circumstances, the petition is allowed and the order passed by the Commissioner (A) asking the petitioner to deposit the amount is set aside. 5. It is hereby clarified that we have not gone into the merits of the matter and the Tribunal shall decide the appeal of the petitioner on its own merits, without being influenced by this order. 6. Subject to what is stated above, petition is disposed of with no order as to costs. (P.B.MAJMUDAR (P.B.MAJMUDAR (P.B.MAJMUDAR J.) J.) J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)