The petitioners challenge an order dated 31/10/1980 passed on the application for waiver of pre-deposit of a duty of Rs. 14, 58, 530.46 p. and a penalty of Rs. 1 lakh levied on them by the Collector of Central Excise, Madurai, the second respondent herein.

2.After considering the case of the petitioners, the Tribunal directed the petitioners to make a pre-deposit of a sum of Rs. 7 lakhs. The Tribunal has decided that the issue with regard to the levy of duty has to be gone into the main case and after taking into consideration the balance sheet of the petitioners, the Tribunal found that a sum of more than Rs. 1.08 crores is due to the petitioners, in addition to a sum of more than Rs. 44.62 lakhs available by way of advances and deposits and the Tribunal thought it fit to pass an order directing the petitioners to make a pre-deposit of Rs. 7 lakhs.

3.I have heard Mr. T.K. Seshadri, learned counsel appearing for the petitioners and Mr. A.S. Venkatachalamurthy, learned Additional Government Pleader (Writs) appearing for the Central Excise.

4.I am of the view that the Tribunal has gone into the question in tangent taken into consideration the outstanding which come to more than Rs. 1.68 crores and considered the question of levy of pre-deposit. It is well settled by this Court while considering the question of levy of pre-deposit, the Tribunal has to take into account the legality and financial position of the company and also see whether anyprima faciecase has been made out by the petitioner. In my view, the Tribunal is not right in determining the outstandings as per the balance sheet of the petitioners' company and then order making of pre-deposit.

5.Apart from that, as rightly contended by Mr. T.K. Sheshadri, learned counsel for the petitioners the question of levy of duty has got to be decided in the main case. But at the same time, it cannot be said that it is a unarguable point without substance under the provisions of Tamil Nadu General Sales Tax Act, the issue in question has been decided in favour of the petitioner in many cases. The decision laid down inThe State of Tamil Naduv.East Coast Constructions and Industries 1986 (61) STC 337 ] is also in favour of the petitioners. Therefore, it cannot be said that the petitioners have noprima faciecase at all in this case.

6.Taking into consideration the fact that the Tribunal has erred in not considering theprima faciequestion of the case and the financial position of the petitioners in a correct perspective, this writ petition is ordered on condition that the petitioners deposit a sum of Rs. 3 lakhs before the Tribunal to the credit of the appeal preferred by them within eight weeks from today. The Tribunal shall dispose of the appeal preferred by the petitioners in accordance with law and after affording reasonable opportunity to the petitioners to represent their case.

7.This writ petition is ordered on the above terms. No costs.