hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7020 OF 2009 Mahindra and Mahindra Ltd. ... Petitioner Versus Union of India and Ors. ... Respondents Mr. V. Sreedharan with Mr. Prakash Shah and Mr. Jas Sanghavi i/by PDS Legal for Petitioner. Mr. A.S. Rao with Mr. Rajinder Kumar for Respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : AUGUST 20, 2009 P.C. Show cause notice was issued to the Petitioners why penalty ought not be imposed. The penalty was imposed in the sum of Rs. 16,19,405/-. The Petitioners aggrieved preferred an appeal before the appellate tribunal. In the appeal preferred before the tribunal, the Petitioners applied for waiver of the amount. The learned tribunal in so far as the duty is concerned, directed deposit and on such deposit, waived the penalty. This is that order which is subject matter of the present petition. In the instant case there is no dispute that the inputs i.e. parts made are only used for capital consumption in the plants of the Petitioners located at various sites. There is no dispute also that the duty is paid initially on ad hoc basis and that the final duty is based on the valuation done in the course of the year. The said estimated amount result in some cases duty been paid in excess and in some other cases less duty been paid. The Petitioners in such circumstances, at the end of the year, normally seek adjustments on the basis of final working out of the figures. There is no dispute in so far as final product is concerned. It is exempted from duty. The Petitioners in the instant case, finding that they had paid excess duty of Rs. 1. 2 Crores had applied for refund which is subject matter of an appeal which is pending, We do not propose to go into that controversy and leave it for the appellate tribunal to decide it on merits. In our opinion, considering the facts that the value could not be determined at the time duty was paid and that will be determined only when the final accounts are made out, the Petitioners have made out a strong prima facie case and in these circumstances, the tribunal ought to have held that directing payment in such cases itself would cause hardship. The Petitioner to secure the Respondents by a Bank Guarantee to be furnished within 16 weeks from today. In the light of the above, we set aside the impugned order. The appeal preferred by the Petitioners to be proceeded with without any order of pre deposit. Rule made absolute accordingly. (D.G. KARNIK,J.) (F.I. REBELLO,J.)