IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 2988 OF 2010 Union of India. ... Petitioner. V/s. Mavi Industries Ltd. and others. ... Respondents. M.I.Sethna, senior counsel with R.Ashokan and S.D.Bhosale for the for the petitioner. V.Sridharan with Prakash Shah i/b. PDS Legal for respondent Nos.1 to 3. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 22nd April 2010. P.C. : Heard. Perused petition. 2. This petition, filed under Article 226 of the Constitution of India, is directed against the order of Customs, Excise and Service Tax Appellate Tribunal, Western Zone, Mumbai ( Tribunal for short) dated 15 th March, 2008 directing the respondent to make pre-deposit in the sum of Rs.25 lakh under section 129E of the Customs Act, 1962 ( Act for short) within a period of four weeks and report compliance on 16th April, 2010. Rival Submissions : 3. Mr.M.I.Sethna, learned senior counsel appearing for the petitioner- Revenue took us through the impugned order and tried to canvas that the view taken by the Tribunal based on the custody of the department with regard to confiscated goods on the touchstone of section 129E of the Act is perverse and not in accordance with law. He further submits that the finding based on condition No.6(i) of the notification No.53/97 dated 3rd June, 1997 is also contrary to the spirit of the said notification, as such the impugned order is liable be quashed and set aside. 4. Mr.Sethna, while elaborating his submissions submits that so far as confiscated capital goods in the custody of the department are concerned, they are hardly sufficient to cover the outstanding dues of the department, as such it was not open for the Tribunal to direct pre-deposit only in the sum of Rs.25 lakh, especially, when the liability of the department is beyond Rs.60 crore. He further submits that so far as condition No.6(i) of the notification No.53/97 dated 3rd June, 1997 is concerned, mere installation of the capital gods within a period of one year is not sufficient but 100% export oriented unit (EOU) is expected to export goods more than the value of the capital goods which were imported without payment of duty. According to him, if the figures of the export are considered, then they are much below the value of the capital goods imported by the respondents. He, thus, submits that the impugned order not being in accordance with law, the same is liable to be quashed and set aside. 5. Per contra, Mr.Sridharan, learned counsel appearing respondent Nos.1 to 3, reserving right to challenge the correctness of the impugned order to the extent it directs pre-deposit in the sum of Rs.25 lakh (assuming it to be correct), urged that the Tribunal has taken into account custody of the confiscated goods with the department on the touchstone of section 129E of the Act and has rightly understood the sweep of condition No.6(i) of notification No.53/97. He further submits that no material was produced by the Revenue before the Tribunal to demonstrate that the value of the confiscated goods is not sufficient to cover the outstanding dues of the department. He, thus, tried to support the order reserving his right to challenge the impugned order directing pre-deposit in the sum of Rs.25 lakh passed by the Tribunal since he has invoked writ jurisdiction of this Court to challenge this part of the order on behalf of the respondent Nos.1 to 3. Consideration : 6. Having heard both parties and having gone through the impugned order, it is not possible to accept the contentions raised by Mr.Sethna for want of material available on record. The view taken by the Tribunal on the touchstone of section 129E of the Act and condition No.6(i) of notification No.53/97 is concerned, the same cannot be faulted since it is a reasonable and possible view. The petition is, thus, without any merits and liable to be dismissed in limine. 7. We may clarify that we have not gone into the merits of the matter impugned before the Tribunal. The Tribunal shall be free to decide the appeal on its own merits without being influenced by this order. 8. Subject to what is stated above, petition is dismissed in limine with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)