( 1 ) RULE, returnable forthwith. Learned A. G. P. waives service for respondent No. 1, whereas Mr. Garge waives service for respondent nos. 2 to 4. Petition is heard finally by consent of parties. Factual Sketch:

( 2 ) THESE petitions, filed under Article 227 of the Constitution of India are directed against the order dated 11th January, 2008 passed below Exh. 5 and 15 by the Civil Judge, Senior Division, Thane in Municipal Appeal No. 13/2007, whereby and whereunder the prayers for interim reliefs were rejected and the applications filed by the respondent No. 2-Navi Mumbai Municipal Corporation seeking pre-deposit before entertaining appeals (Exh. 15) were allowed and the petitioners herein are directed to make pre-deposit of the amount found due under the order of assessment and demand with interest and penalty within one month from the date of the order. Both these petitions involve identical issues based on common facts between the same parties, as such they were heard together and are being disposed of by this common judgment. The factual matrix is borrowed from W. P. No. 4176/2008. Factual Matrix:

( 3 ) THE petitioners are an Export Oriented Unit (EOU), inter alia; engaged in export of diamond studded jewellery out of India. The petitioners, in the course of business, have imported in the limits of Navi Mumbai Municipal corporation diamonds and coloured stones since they are engaged in business of studding of diamonds and colour stones in the jewellery and exporting such diamond studded jewellery out of India. According to the petitioners, they do not carry out any process on the diamonds brought in the limits of Municipal corporation except studding it into the jewellery, as such diamonds imported in the city are not subjected to levy cess of octroi under the provisions of the bombay Provincial Municipal Corporations Act, 1949 ("act" for short ).

( 4 ) RESPONDENT No. 1 is the State of Maharashtra, whereas respondent No. 2 is the Navi Mumbai Municipal Corporation constituted under section 3 of the act. Respondent Nos. 3 and 4 are the officers of respondent No. 2-Corporation discharging duties and carrying out their functions under the said Act. Under chapter XI-A of the Act, the Municipal Corporation has ordered to levy cess of octroi. The Deputy Commissioner of Cess (Zone-I) of the Corporation passed an order of assessment dated 3rd August, 2006 in respect of petitioners for the assessment year 2005-06 under Rule 25 (5) of the Bombay Provincial Municipal corporations (Cess on Entry of Goods) Rules, 1996 ("bpmc Rules" for short)framed under the Act and issued demand notice in Form-J demanding Rs. 80,189/- for the said year. The petitioners not only paid said amount demanded under demand notice but made excess payment of cess in the sum of Rs. 9,46,570/- which was refunded to the petitioners vide assessment dated 3rd august, 2006.

( 5 ) ON 21st June, 2007, the petitioners were served with letter dated 19th june, 2007 stating therein that refund under Rule 49 was wrongly granted to them as such assessment made on 3rd August, 2006 required to be reopened and reassessed under Rule 27 (1) of the BPMC Rules. Accordingly, show-cause-notice dated 29th June, 2007 was issued to the petitioners calling upon them to produce specified documents and accounts as well as the details of the refund claimed under Rule 49 of the BPMC Rules.

( 6 ) THE petitioners submitted their written reply to the show-cause-notice, inter alia; stating that the diamonds retain their original identity / characteristics at all times and, consequently, the refund under Rule 49 was correctly granted and, therefore, requested to drop the re-assessment proceedings.

( 7 ) THE Deputy Commissioner (Cess), after hearing the petitioners, vide his order dated 10th August, 2007, disallowed the refund of Rs. 9,46,570/- already granted to the petitioners under Rule 49 of the BPMC Rules and called upon them to pay the same with interest in the sum of Rs. 10,03,364/- under R

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