Judgment K.A. Puj J.—The applicant – ori. petitioner has filed this Misc. Civil Application seeking modification in the order dated 10.3.2011 passed by this Court in Misc. Civil Application No. 607 of 2011 by modifying/ deleting/substituting the condition of deposit of total sum of Rs. 93,64,004/- minus the amounts already paid (i.e. the remaining amount of Rs. 49,64,004/-) by 1.4.2011 and in place of it directing the respondents to accept the land bearing Survey No. 409/11 admeasuring 2737.45 Sq.Mtrs., situated in Surat as security by creation of a mortgage/charge over the said land and thereby directing the respondents to restore the Appeal Nos. E/643 and 644/2007 to the file for expeditious hearing. 2. This Court has passed an order on 8.4.2011 in this application calling upon an explanation from the respondent as to why even after flouting previous order dated 24.6.2008 in Special Civil Application No. 6693 of 2008 and without even pendency of any matter before any Court, the respondents have not taken appropriate steps for recovery of the amounts for which liability of the petitioner had already crystallized way back in the year 2006 when the Order-in-Original confirming the demand of cenvat credit of Rs. 93,64,004/- was made and penalty of equivalent amount with interest was imposed. The Court has also directed that the higher officer concerned in the office of Respondent No. 3 should file an affidavit explaining prima facie lapses on the part of the respondents effecting recovery of overdue amounts from the petitioners by the next date of hearing. 3. Pursuant to the above order, Respondent No. 3 i.e. Commissioner, Central Excise & Customs, Surat-I, has filed a detailed affidavit explaining the steps taken by the Excise Department for enforcing the recovery of the outstanding amounts from the petitioners. It is, inter alia, stated that on 8.4.2011 when this Court has passed an order calling for an explanation the Assistant Commissioner, Surat Municipal Corporation, Surat, furnished property details of the petitioners and issued Certificate that a sum of Rs. It is, inter alia, stated that on 8.4.2011 when this Court has passed an order calling for an explanation the Assistant Commissioner, Surat Municipal Corporation, Surat, furnished property details of the petitioners and issued Certificate that a sum of Rs. 185.20 lacs has been demanded and is payable by the petitioners by way of duty/penalty/interest under the Central Excise Act and has not been paid and can be recovered from the said property, namely, 0025 paiki, West Udhna Magdalla Road, Khatodara, Surat in the manner provided in Section 11 of the Central Excise Act, 1944 or Rule 230 of Central Excise Rules, 1944 or Section 142(1)(c)(b) of the Customs Act. On the same date i.e. 8.4.2011 the Range Superintendent addressed a letter to the City Survey Officer, Surat requesting him to go through the details of the Certificate issued by the Assistant Commissioner, Surat Municipal Corporation and provide the land records i.e. property card details alongwith the name of persons/owner interested in the land in question. On 12.4.2011 inventory of immovable properties attached at the premises of the petitioner at Plot No. 409, Udhna Magdalla Road, Surat under Rule 5 of the Customs (Attachment of Property of Defaulters for Recovery of Government dues) Rules, 1995, was taken. It is further stated that the required steps for recovery of dues from the petitioners have been taken by the Excise Department during the period while no stay/injunction granted by CESTAT was in operation. It is further stated that after this Court passed an order on 24.6.2008 and on expiry of time limit prescribed therein the Department Officers have commenced proceedings for recovery of dues from the petitioners. The Dy. Commissioner, Central Excise & Customs, Division-I, Surat-I, has issued notice of demand in Appendix-II to the petitioners requiring them to pay amount of Rs. 2,44,04,008/- within seven days from the date of receipt of the notice and also informed the petitioners that in case of default, steps would be taken for realization of the amount in accordance with the provisions of the Customs (Attachment of Property of Defaulters for the Recovery of Government Dues) Rules, 1995. 2,44,04,008/- within seven days from the date of receipt of the notice and also informed the petitioners that in case of default, steps would be taken for realization of the amount in accordance with the provisions of the Customs (Attachment of Property of Defaulters for the Recovery of Government Dues) Rules, 1995. Simultaneously, in the said process, the Range Superintendent has issued notice of demand to the petitioners and has also simultaneously applied to the Assistant Commissioner (Finance), Surat Municipal Corporation, Surat requesting to provide details of property, if any, in the name of the petitioners for taking necessary action for recovery of government dues from petitioner. The Range Superintendent has by letter dated 21.1.2010, 10.3.2010, 30.6.2010, 23.9.2010 and 16.3.2011 also requested the City Mamlatdar, Udhna to supply details of all types of property/land in the name of the petitioners for the purpose of making recovery of government dues from the petitioners and such other defaulters. It is further stated that pursuant to the Certificate issued by the Assistant Commissioner, Central Excise & Customs, Division-I, Surat, under Section 142(1)(c)(ii) of the Customs Act, 1962 certifying that a sum of Rs. 182.29 lacs has been demanded from and payable by the petitioners and by letter dated 8.4.2011 the City Survey Officer, Surat was requested to go through the property details of the petitioners and provide land records for the same. Accordingly, after receipt of the details of the land records of the petitioners on 12.4.2011 immovable properties of the petitioners being land admeasuring 2737.45 Sq.Mtrs., approximately valued at Rs. 6,02,23,900/- was attached by exercising power under Section 142 of the Customs Act, 1962 read with provisions of the Customs Act (Attachment of Property of Defaulters for the Recovery of Government Dues) Rules, 1995. 4. In view of the above explanation tendered by the Respondent No. 3, it is urged before the Court that the Excise Department has made all efforts and there was no lapse on the part of the Officers and hence the said explanation be accepted and the application be rejected. 5. On behalf of the petitioners an affidavit-in-rejoinder is filed wherein it is, inter alia, stated that the property worth Rs. 6 crores approximately is already attached over and above the amount of Rs. 44 lacs as directed by the Tribunal has been deposited. 5. On behalf of the petitioners an affidavit-in-rejoinder is filed wherein it is, inter alia, stated that the property worth Rs. 6 crores approximately is already attached over and above the amount of Rs. 44 lacs as directed by the Tribunal has been deposited. It is further stated that an appeal cannot be dismissed for failure to pre-deposit the amount. Reliance is placed on the decision of Commissioner of Central Excise, Kolkata vs. Shree Gobinddeo Glass Workers Ltd., reported in 2011 (263) ELT 178 (Cal), wherein it is held that proper course and procedure is that wherever pre-deposit is required either the same should be dispensed with fully or partially on application being made. If such dispensation is not allowed then the Tribunal would issue a show cause notice before taking up the appeal for dismissal on account of failure of pre-deposit. On the date fixed if sufficient cause is shown the Tribunal can exercise its discretion and may extend the period or may reconsider the question of dispensation of pre-deposit on subsequent event or fresh materials having been placed after earlier order being passed. It is, therefore, submitted that the Tribunal having not followed the said procedure and on the contrary directly dismissing the appeals for failure of pre-deposit is bad in law and thus deserves to be set aside. 6. It is further submitted that the matter pertains to the issue of fake invoice credit and the Tribunal had dismissed the appeal for non-compliance on 22.3.2008. Subsequent to this, the same issue was the subject matter before the Tribunal in group matters and the Tribunal had remanded all the cases of fake invoice credit vide order dated 23.11.2010/24.1.2011. Further, pending stay application and appeals, other cases have been remanded considering that when the issue has been decided no pre-deposit is required and the issue is thus supported by the Supreme Court’s judgment in the case of ITC Ltd., 2010 (259) ELT A20 (SC). In this case the Apex Court had directed that the assesse may not be called upon to deposit the impugned duty and appeal be disposed of by the appellate authority expeditiously and the order of the High Court directing the appellant to deposit a sum of Rs. 60 lacs was set aside. In this case the Apex Court had directed that the assesse may not be called upon to deposit the impugned duty and appeal be disposed of by the appellate authority expeditiously and the order of the High Court directing the appellant to deposit a sum of Rs. 60 lacs was set aside. The petitioner also relied on the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. vs. Commissioner of Central Excise, Bhopal, 2007 (211) ELT 21 (SC), wherein the appellants had challenged the direction of the Tribunal to deposit 50% of the tax amount which was to the tune of Rs. 2.50 crores. The Apex Court directed that as the appellant is ready to pay 1/5th of the amount due the respondent must accept the same and hear the appeal on merits. 7. In the above view of the matter, it is urged that the order in question may kindly be modified and since the outstanding dues of the Excise Department are fully secured by virtue of an attachment order passed, coupled with the fact that the petitioners have already paid an amount of Rs. 44 lacs, the appeals be restored to the file of the Tribunal with a direction to dispose the same as expeditiously as possible. 8. Having heard learned advocate Mr. P.R. Nanavati for the petitioners and Mr. R.J. Oza, learned Senior Standing Counsel for the Excise Department and having considered their rival submissions in light of their pleadings, statutory provisions and decided case law on the subject, though the Court is initially inclined to reject this application, considering the further fact that the immovable property worth Rs. 6 crores is under the attachment of the Excise Department, an amount of Rs. 44 lacs as per the conditional order of the Tribunal has already been paid, though late, appeals involving somewhat similar issue have already been heard and disposed of by the Tribunal by setting aside the adjudication order and remanding the matter for fresh determination and indulgence shown by the Apex Court in respect of failure to comply with the order of pre-deposit, either in terms of amount of pre-deposit or time limit prescribed for such pre-deposit, the Court, with great reluctance modifies its earlier order dated 10.3.2011, by permitting the petitioners to raise loan of Rs. 55 lacs on the properties already attached, so as to make payment of this amount to Excise Department. For this purpose, the attachment would not come in the way of the petitioners and any Bank or Financial Institution sanctioning the loan of Rs. 55 lacs after creating charge or encumbrance on this property shall have first charge on this property. 9. It is made clear that this amount shall not be used for any other purpose, except for the purpose of making payment to the Excise Department. The Excise Department shall not raise any objection in petitioners getting the loan sanctioned by creating charge and/or mortgaging the attached property for the above purpose. This entire exercise must be completed on or before 15.6.2011 and on deposit of this amount of Rs. 55 lacs with Excise Department, both appeals i.e. Appeal Nos. E/643 and 644 of 2007 shall stand restored and the CESTAT shall decide and dispose of the said two appeals on merits and in accordance with law, preferably within three months from the date of restoration of appeals. Subject to the above, the attachment on the property shall continue till the appeals are heard and disposed of by the Tribunal. 10. It is further made clear that looking to the peculiar facts of the case, the Court has shown this limited indulgence in the interest of justice. However, this is not to be treated as precedent. 11. The Court showing this limited indulgence shall not be considered as condonation of defaults committed by the petitioners nor shall it be considered as acceptance of the respondents’ explanation in toto. More effective steps could have been taken for recovery of the amount due and payable by the petitioners. 12. With these directions and observations, this application is accordingly disposed of without any order as to cost. Direct service permitted. P P P P P