mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.6976 OF 2009 M/s.NSIE Company (I) Pvt. Ltd. ..Petitioner Vs. The Customs Excise and Services Tax Appellate Tribunal & Ors ..Respondents Mr. Sanjay Kshirsagar, for the petitioners Mr.Rohit B. Pardeshi, for the Respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 23RD SEPTEMBER , 2009 P.C. Rule. By consent heard forthwith. 2. Subsequent to remand the A.O.,redetermined the duty demand in the sum of Rs.31.00 lacs and odd. In appeal that was confirmed by the First Appellate Authority. It is the submission of the petitioners that it had been contended by them that they are entitled to Modvat credit as chiller falls under the Head 84.18 to the Tariff Act. It was then submitted that it was not considered by the Commissioner (Appeals) on the ground that it was a new parts. 3. Against the order of the Commissioner (Appeals) the petitioner approached the Tribunal which ordered pre- deposit of the entire amount of duty. As the petitioner failed to deposit the amount on 8th June, 2009 the learned Tribunal was pleased to dismiss the appeal for failure to comply with the order of pre-deposit. 4. After hearing the petitioner, in our opinion, if the judgment in Commissioner of Central Excise, Delhi vs. Carrier Aircon Ltd., 2006 AIR SCW 3910 is considered the petitioner herein may be entitled to Modvat credit on chillers. According to the learned Counsel for the petitioners this works out to about Rs.7.5 lacs. 5. Learned Counsel has taken us through the profit and loss account for the year ended 31st March, 2008 which shows that the sale and other income were about Rs.19.5 lacs and for the previous year Rs.17.65 lacs. In our opinion these are issues which ought to have bearing on the issue of hardship in the case of the petitioner. Considering that the petitioners have made out a case and the hardship that will be occasioned to the petitioners if the Appeal is dismissed without the appeal being heard on merits the ends of justice would be met if the order of dismissal is set aside and the order of pre-deposit is varied to the extent that the petitioners to deposit a sum of Rs.15.00 lacs within sixteen weeks from today. This time has been granted in order to enable the Appellants to make arrangements for pre-deposit. 6. We make it clear that if the above amount is deposited as per directions, the learned Tribunal to hear the appeal on merits. If the amount is not deposited the impugned order of the Tribunal stands confirmed. 7. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)