Judgment M.M.Kumar, J. 1. This petition filed under Article 226 of the Constitution prays for quashing order dated 22-1-2007 (Annexure P.10) passed by the Addl. Director General of Foreign Trade dismissing the appeal of the petitioner on the ground that he had failed to make the payment of pre-deposit as was directed vide order dated 27-9-2006 (Annexure P.9). 2. The petitioner had earlier filed on application dated 5-7-2000 in the office of Joint Director General of Foreign Trade, Ludhiana, for obtaining the DEPB for Rs. 4,54,991/-. They also submitted a copy of the shipping bill No. 002276 showing export of 10237 kgs of Spanners for a FOB value of Rs. 26,19,375/-. The shipping amount was shown to be made on 31-3-2000 and they were issued DEPB @ applicable on that day. The value cap of Rs. 60/- kg. for the purpose of issuance of DEPB on the export of spanners has been imposed by the Government w.e.f. 1- 4-2000. The application is alleged to be ante-dated as the cargo receipt register maintained by M/s. Overseas Ware Housing Pvt. Ltd. Ludhiana showed that cargo was received in the Ware House on 4-4-2000 and they could be eligible for DEPB at the rate applicable on 4-4-2000 which is less than the rate they have applied for. As a consequence, penal proceedings were initiated against the petitioner and penalty of Rs. 1,00,000/- was imposed on the petitioner and its partners for ante-dating the date of shipment. In addition the DEPB No. 3010004718, dated 13-7-2000 was cancelled. The petitioner filed an appeal as per the provisions of Sections 15 of the Foreign Trade (D&R) Act, 1992 (for brevity the Act). No appeal is entertained unless the penalty amount has been furnished as a pre-deposit which was not done. The petitioner was directed vide order dated 31-8-2005 to furnish the pre-deposit of penalty within 15 days failing which the appeal was to be dismissed for the contravention of the provisions of Section 15 of the Act. The afore-mentioned requirement was resisted by pressing the stay application which was filed by the petitioner along with the appeal. On account of non-appearance, the appeal was rejected vide order dated 13-1-2006 which was challenged before this Court in CWP No. 3259 of 2006. The afore-mentioned requirement was resisted by pressing the stay application which was filed by the petitioner along with the appeal. On account of non-appearance, the appeal was rejected vide order dated 13-1-2006 which was challenged before this Court in CWP No. 3259 of 2006. This Court vide order dated 1-8-2006 directed the Appellate Tribunal to take a fresh decision after hearing the petitioner on merits subject to passing of an order on the application for waiver of pre-deposit and the petitioner was directed to appear before the appellate authority for further proceedings on 18-9-2006. The application was heard and eventually on 27-9-2006 they were directed to submit pre-deposit of penalty of Rs. 1,00,000/- within a period of eight weeks from the date of issuance of the order failing which the appeal was to be decided without granting any further opportunity. When the afore-mentioned order was not complied with the appeal was also dismissed on 21-2-2007 by observing as under : I have gone through the facts of the case available on record and the submission made by the appellant firm. It has been observed from the Order-in-original, which is a very comprehensive order, that the appellants has ante-dated the date of exports to avail undue higher benefit of DEPB. As per the Honble Punjab and Haryana High Courts order dated 1-8-2005, in CWP No. 3259 of 2006, the appellants were given opportunity of personal hearing on 18-9-2006. During the personal hearing, from the facts of the case, it was observed that the appellants indulged in forgery of shipping bills by antedating the date of shipping bills with a view to avail higher rate of DEPB. Hence, this is not a fit case to give waiver from pre-deposit condition to entertain the appeal. The appellant, vide my interim order dated 27-9-2006, were given eight weeks time from submission of pre-deposit, which they failed. Further time, as requested by them was also allowed but the appellants have not submitted the pre-deposit till this date. Hence, the appeal cannot be entertained without submission of pre-deposit of penalty. Accordingly in view of the powers vested in me in terms of provisions of Section 13 read with Section 15 of the Foreign Trade (D&R) Act, 1992, the following order is made. 3. Hence, the appeal cannot be entertained without submission of pre-deposit of penalty. Accordingly in view of the powers vested in me in terms of provisions of Section 13 read with Section 15 of the Foreign Trade (D&R) Act, 1992, the following order is made. 3. Jagmohan Bansal, learned Counsel for the petitioner has outrightly submitted that the petitioner has complied with the interim order dated 27-9-2006 and has submitted pre-deposit. According to the learned Counsel his appeal may now be heard on merits by the appellate authority. 4. Mr. Kamal Sehgal, learned Counsel for the revenue has submitted that the petitioner-firm does not deserve to be granted any concession because despite the passing of order on 27-9-2006, it did not submit pre-deposit. According to the learned Counsel no concession should be given to such like firm. 5. After hearing the learned Counsel and perusing the record, we are of the considered view that once the petitioner has submitted the pre-deposit on 27-1-2007 we would direct the appellate authority - Addl. Director General of Foreign Trade to take up the appeal of the petitioner and decide the same on merits accordance with law. We are further of the view that the appellate authority should not have expressed any thing on merits and recorded a finding as is evident from the perusal of para 5 of the impugned order which has been reproduced in the preceding para of the judgment. Such a course was not available to the appellate Authority. Therefore, the order dated 22-1-2007 is liable to be set aside. 6. In view of the above, the order dated 22-1-2007 (Annexure P.1) is set aside. The appeal is restored to its original number on the file of the appellate authority-cum-Additional Director General of Foreign Trade. The appellate authority shall hear the appeal on merits and decide the same by taking into account the arguments of the parties/their counsel. 7. The parties shall appear before the appellate Authority either on the next date to be notified by it or a date thereafter. 8. A copy of the order be sent to the appellate authority for further necessary action.