Judgment:
K.A. Swami, C.J.
1. At the stage of admission, the respondent has been directed to take notice. Accordingly, he is represented through a counsel. As the Appeal involves a short point, it is admitted and heard for final disposal.
2. This Appeal is preferred against the order dated 10th September, 1993, passed by the learned single Judge in W.P. No. 6373 of 1993. In the Writ Petition, the respondent herein sought for quashing the order dated 5-3-1993, passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Southern Regional Branch at Madras, hereinafter referred to as the Tribunal, directing the respondent to pre-deposit a sum of Rs. 20,00,000/- on or before 31st May 1993 and report compliance subject to which pre-deposit of the balance duty and the entire penalty on petitioner CLW and petitioner Nataraj Prabhu would stand dispensed with pending appeal.
3. Learned single Judge has held that the Tribunal has passed a very correct and judicious order. However, he has held that instead of Rupees Twenty Lakhs, the petitioner may deposit Rupees Seven Lakhs for waiving the pre-deposit. Hence, the respondents in the Writ Petition have come up in appeal.
4. It is relevant to notice that the Tribunal has recorded a finding as follows :
'We have gone through the provisional balance sheet of the petitioner company. As reflected in the provisional balance sheet, we note that more than Rs. 1.59 crores is due to the petitioner from sundry debtors and this is in addition to more than Rs. 15 lakhs shown under the asset column of the balance sheet as advance and deposits. We also take into account the admitted fact that the petitioner unit made a profit of about Rs. 13.9 lakhs after setting apart a substantial amount of Rs. 25 lakhs towards depreciation. We also take note of the fact that as per the provisional balance sheet for the period 1-4-1992 to 31-10-1992, the liquidity position of the petitioner is not satisfactory and the unit has to discharge debt liability to the tune of about Rs. 40 lakhs to the banks. We also take note of the fact that as on 31-10-1992 Rs. 1.55 crores are due to the petitioner from sundry debtors.'
In the light of the finding recorded by the Tribunal that the respondent has made a profit of about Rs. 13.9 lakhs, and that it is yet to discharge the debt liability to the tune of Rs. 40 lakhs, it has nevertheless directed the respondent to deposit a sum of Rs. 20 lakhs out of Rs. 62,76,416/- and a penalty of Rs. 1 lakh imposed on petitioner on Coronation Litho Works (C.L.W.) and a penalty of Rs. 1 lakh imposed on petitioner Shri Nataraj Prabhu. During the course of the order the Tribunal has noticed that a sum of Rs. 25 lakhs is set apart towards depreciation and a sum of Rs. 1.59 crores is due to the respondent from sundry debtors. It is on the basis of these facts, the Tribunal appears to have directed the respondent to deposit a sum of Rs. 20 lakhs. It may be relevant to notice that the amount set apart for depreciation has to be spent for that purpose, otherwise the unit cannot run smoothly. As far as the sundry debts due to the respondent are concerned, until the recovery is made, it cannot be said that the said sum is immediately available to the respondent. If these two amounts are excluded, then what remains is the profit of about Rs. 13.9 lakhs and the liability of the respondent to banks to the tune of Rs. 40 lakhs. Therefore, under these circumstances, we are of the view that the just order that would have been passed by the Tribunal was to direct the respondent to deposit a sum of Rs. 13 lakhs. We accordingly modify the order of the learned single Judge and also that of the Tribunal and direct the petitioner-respondent to deposit a sum of Rs. 13 lakhs. Out of that sum, it has already deposited a sum of Rs. 7 lakhs. Therefore, it has to deposit the balance of Rs. 6 lakhs. For the remaining amount, as ordered by the Tribunal, namely, the sum of Rs. 7 lakhs, the respondent shall furnish security, which may be of immovable property, free from encumbrance with marketable title or bank guarantee, within one month from today. The Writ Appeal is disposed of in the above terms. There will be no order as costs.