M.H. Kania, Ag. C.J.
1. This is an appeal against the judgment and order of a learned Single Judge in Misc. Petition No. 914 of 1975 wherein the Rule was discharged with costs. The judgment proceeds on the footing of a statement made by Mrs. Rana, who appeared for the petitioner (the appellant herein) before the learned trial Judge. The said statement of Mrs. Rana was that the dispute involved in the Misc. Petition No. 914 of 1975 was identical to the dispute raised in Misc. Petition No. 922 of 1974. Proceeding upon that statement, the learned Judge has proceeded to dismiss the petition and discharge the rule with costs, following his judgment in Misc. Petition No. 922 of 1974, without going into any facts or contentions.
2. It is pointed out before us by Mr. Taraporewala, learned Counsel for the appellant that the statement of Mrs. Rana seems to have been made under a misapprehension. As far as Misc. Petition No. 922 of 1974 is concerned, the petitioner there had taken a stand throughout, perhaps erroneously, that the vegetable tallow manufactured by it and sold for the purpose of manufacture of soap was an excisable product falling under Item No. 13 of the First Schedule to the Central Excises and Salt Act, 1944 whereas in Misc. Petition No. 914 of 1975, the stand taken by the petitioner has always been that the vegetable tallow manufactured by it and sold for being used in the manufacture of soap was only an intermediate product and not an excisable product and the excisable product, which was the finished product in the case, was soap. This submission finds support from the order of the 3rd respondent dated 24th June 1979 which is a part of Exhibit 'B' (Colly.) to the writ petition.
3. If the respondents wanted to resist the appeal or to urge that the appellant should not be allowed to go back on the statement made by its Counsel Mrs. Rana in the trial Court in Misc. Petition No. 914 of 1975, we should have expected them to appear and resist the appeal. Today, however, neither the respondents nor their Advocates are present. We may point out that last Friday, namely, on 21st June 1985, when this matter was kept for judgment along with Appeal No. 303 of 1979 in (Misc. Petition No. 922 of 1974) no Advocate had appeared on behalf of the respondents. At that stage, Mr. Ganesh, who appeared on that day for the appellant in the Appeal No. 303 of 1979 as well as in the present appeal, informed us that the appellants wanted to submit that the aforesaid statement was erroneously made by Mrs. Rana in the trial Court and that the appellant should be allowed to withdraw that statement in the hearing of the appeal before us.| In view of this, we specially directed this appeal to be on board for hearing today so that, if the respondents had any objection to the appellant being permitted to withdraw that statement, that objection could be heard. The respondents, however, have not chosen to remain present, and we must, therefore, take it that they are not serious about opposing this appeal.
4. In these circumstances we allow the appeal and set aside the order of the learned trial Judge. We direct that the Misc. Petition No. 914 of 1975 shall be disposed of afresh by the learned trial Judge dealing with Misc. Petitions according to law, on the facts and pleas taken in the petition and without taking into account the aforesaid statement made by Mrs. Rana. With a view to obviate any objection or grievance on the part of the respondents, we direct the excise duty payable in the case, which comes to Rs. 1,80,332-80, to be deposited in Court by the appellant within a period of four weeks from today. The appellant has no objection to this part of the order. Upon the deposit being made as aforesaid, the appellant will be at liberty to have the bank guarantee cancelled. There will be no order as to the costs of the appeal. As far as the costs of the petition are concerned, in view of the fact that the decision of the learned trial Judge was based on a statement made by the Counsel for the petitioner, it is fair that the order of the learned trial Judge to the extent that it directs the petitioner to pay the costs of the petition should remain and it is ordered accordingly.