Per Shri P.C. Jain :

Ld. Adv. Shri T.K. Ramasubramaniyam prays for waiver for pre-deposit and recovery of Rs. 28,01,77,214.87 for the period 1.7.1985 to 31.6.1996 against the five show cause notices, all issued well-beyond the period of six months. He also prays for a similar treatment of penalty of Rs. 10 crores imposed on the applicants.

2. Ld. Adv. submits that the aforesaid demand of duty has been imposed on the entire dealers margin in respect of cars by the applicants to their dealers on principal to principal basis. In fact it is much more than the amount of costs in respect of (1) pre-delivery inspection, and (2) after sales services, both performed by the dealers out of their margins to the customers. These services he submits are not provided by the manufacturers to the customers. He submits that there is a very recent judgement of the Tribunal in the case of Mahindra and Mahindra Ltd. and Maruti Udyog Ltd. vide final order No. 191-197/98A dt. 13.2.1988[reported in [1998 (25) RLT 547 (T)] directly finding in favour of the appellants therein which equally applies to the applicants herein. In view of the said judgement, he submits that the applicants have a strong prima facie case and consequently the amount of duty and the penalty imposed under the impugned order on the applicants should be waived and the recovery thereof should also be stayed pending the appeal in the Tribunal.

3. He has also made a plea that the demands of duty are barred by time.

4. Opposing the contentions, Ld. Adv. Shri N.C. Roychowdhuri submits, while conceding with his usual fairness that no doubt the judgement of Mahindra and Mahindra and Maruti Udyog Ltd. are in favour of the applicants/appellants, that the said judgement does not deal appropriately the impact of the basic judgement of Supreme Court in the case of Bombay Tyre International Ltd. He therefore prays that the applicants should be put on some terms if the Stay Petition is at all to be allowed.

5. We have carefully considered the pleas advance from both the sides. Without entering into the question of the show cause notices being barred by time, we are of the view that the applicants have a strong prima facie case in their favour in as much as there is a direct judgement of the Tribunal delivered by Delhi Bench in the case of Mahindra and Mahindra mentioned (supra).

Consequently, we allow the Stay Petition unconditionally.