mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6477 of 2009 Larsen and Toubro Limited .. Petitioners versus The Union of India & ors. .. Respondents ... Mr. Prakash Shah with Mr.Jas Sanghavi i/b PDS Legal for the petitioners. Mr.P.S. Jetly with Mr.Rajinder Kumar for respondents. CORAM : FI. REBELLO AND D.G. KARNIK, JJ DATED : 29 th July 2009. P.C:- 1. Rule. Heard forthwith. Parties have no objection for the matter being heard. 2. The Commissioner in his order dated 12th December 2008 has taken a view that the Special Cut Naphtha Project was undertaken by L & T as a Turnkey Project and not charging to duty as per Board’s Section 37B Order dated 15th January 2002 as is involves supply of large number of components, equipments, pipes and tubes for the assembly/installation/ interconnectivity on the foundation/civil structure at site. It is also not movable as such and cannot be marketed by dismantling without substantial damage to its structure. However, the component s that have gone into the Project would be dutiable as manufactured goods as per Para 5(i) of the said Section 37B order. 3. After having so held in paragraph 19, the Commissioner proceeded to hold that the erection of the fire heater would amount to manufacture and consequently tax to be payable on the same. 4. The petitioner aggrieved by the order preferred an appeal before the learned Tribunal which by its order dated 24th June 2009 has been pleased to direct the petitioners herein to deposit the amount of Rs.5.52 lakhs along with interest. The pre-deposit of the penalty of Rs.1,00,000/- was dispensed with. 5. At the hearing of this appeal on behalf of the petitioner, it is submitted by the learned counsel, that the fire heater is an intergral part of the project which is a Turnkey Project. Once the Commissioner has come to the conclusion that Turnkey Project is exempt, the fire heater being an intergral part, it was not open to the Commissioner to hold that the fire heater is assessible to tax. 6. On behalf of the respondent, learned counsel was asked as to whether the Naphtha plant which was a Turnkey Project could be run without the Fire Heater. Learned counsel is unable to answer the same. Prima facie, petitioner herein has made a strong prima facie case. In the light of the matter, and once a strong prima facie case is made out, it is not necessary for us to go into the issue of hardship. If no duty is payable and a party is called upon to deposit duty that itself would be occasioning hardship. 6. In our opinion considering the strong prima facie case, the impugned order dated 12th June 2009 is set aside. Respondent herein are allowed to proceed with the appeal without pre-deposit of duty and interest. 7. Rule is made absolute accordingly. No order as to costs. (D.G. KARNIK, J) (F.I. REBELLO, J)