Rule. Heard Forthwith v. Commissioner Of Income Tax, (2008) 306 I.t.r. 196 (S.c

mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.7643 OF 2009 Jindal Drugs Limited ..Petitioners Vs.The Union of India & Ors...Respondents Mr. V.Sreedhran with Mr. Prakash Shah i/b. PDS Legal for the Petitioners.Mr. J.B. Mishra with Mr. M.I. Sethna, Senior Counsel for the Respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 15TH SEPTEMBER, 2009 P.C. Rule. Heard forthwith. 2.Petitioners have approached this Court against the order dated 4[th] August, 2009 passed by the CESTAT in the matter of predeposit. 3.Export Cess on spice is sought to be recovered from the petitioners on the ground that the products sought to be marketed by them which is Menthol Crystals l extracted from menthol oil which itself is extracted from a plant which bears botanical name “Mentha Arevnsis Linn” of which English common name is Japanese Peppermint and Hindi common name “Podina”. This is reflected under Item No.36 of the Indian Standard Terminology for Spices and Condiments. 4.It is the case of the petitioners that considering this and even under various Customs Tariff Entries their product falls under Tariff Entry No.29061100 whereas Coffee, tea, mate and spices fall under Chapter 9. That really may not be relevant in so far as charging of cess under the provisions of Spices Cess Act. 5.In our opinion, considering the terminology and the product the petitioners have made out a strong prima facie case. Once a strong prima facie case is made out calling the petitioners to deposit the amount will itself cause hardship to the petitioners. See B.M. Malani vs. Commissioner of Income Tax, (2008) 306 I.T.R. 196 (S.C.). 6.In the light of the above, in our opinion instead of calling upon the petitioners to deposit the amount the order of the Tribunal is varied and the petitioners are directed to furnish a bank guarantee for the said amount of Rs.50.00 lacs within four weeks from today pending the hearing and final disposal of the Appeal and for a period of eight weeks thereafter. 6.We make it clear that we have not decided the matter on merits. 7.Rule made absolute accordingly. There shall be no order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)