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2018 DIGILAW 181 (BOM)

Central Electronics Limited v. Union Of India

2018-01-18

BHARATI H.DANGRE, S.C.DHARMADHIKARI

body2018
ORDER S.C. Dharmadhikari, J. - By this Petition under Article 226 of the Constitution of India, the petitioner is seeking the following three reliefs : "(a) that this Hon''ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India quashing the impugned order dated 28-3-2003 issued by the Respondent No. 2 (Exhibit "A-1"); (b) that this Hon''ble Court be pleased to quash the letter dated 24-8-2017 issued by the Respondent No. 3 (Exhibit "A-2"); (c) that this Hon''ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction staying the implementation of the impugned order issued by the Respondent No. 2 and letter dated 24-8-2017 issued by Respondent No. 3;" 2. The Petition proceeds on the footing that a Public Sector Undertaking (PSU) like the petitioner is engaged in manufacture of the goods, details of which are set out in para 4.1 of the Petition. The claim is that the petitioners are regular importer and exporter and registered with the Director-General of Foreign Trade. The petitioner, in order to carry on certain production activities, imported automatic machines and the details of this import are also set out in para 4.3 of the Petition. 3. The claim of the Petitioner is, as against this import, a provisional duty of Rs. 85,26,959/- under heading 98.01 of the Custom Tariff and Project Import Regulations, 1986, has been paid. A provisional duty bond of Rs. 1,52,50,000/- for differential duty was also executed. 4. The claim is that the goods were imported for home consumption and certain compliances were to be made which were not made but this could not have been termed as default, much less intentional. A show cause notice was issued dated 21st October, 1997 and the specific claim is that it was not served. No notice of any hearing was received, nor was the petitioner heard, but an ex parte order came to be passed on 28th August, 2003. 5. The respondent No. 2 denied the benefit of project import and passed this order. 6. However, the petitioner did not file an Appeal under bona fide belief that it is the arm of the Government of India. 5. The respondent No. 2 denied the benefit of project import and passed this order. 6. However, the petitioner did not file an Appeal under bona fide belief that it is the arm of the Government of India. Being a Government of India Enterprise, it should not indulge in litigation, but try and sort out all the issues and problems, particularly of the above nature, in terms of the direction of the Ministries and which direction was then prevailing. That direction was based on an order passed by the Hon''ble Supreme Court of India in the case of Oil and Natural Gas Commission v. Collector of Central Excise, reported in 1995 Supp.(4) SCC 541 = 1992 (61) E.L.T. 3 (S.C.) . 7. Further, the petitioner was advised to initiate some correspondence. There is a voluminous correspondence, according to Mr. Raichandani, appearing for the petitioner. On legal advise, even an application was filed invoking Section 154 of the Customs Act, 1962 styled as supplementary application, which also came to be dismissed. Then, there were representations requesting for a fresh hearing. Eventually, the matter could not be resolved by the Committee of Disputes set up to resolve disputes between interdepartmental or inter-governmental organizations and entities. It is in these circumstances that the petitioner submits that once again a request was made for granting personal hearing. More so, when the shortfall in customs duty comes to Rs. 23,56,548/ only. The petitioner was called for some sort of hearing/meeting by the Deputy Commissioner of Customs, who did not alter or modify his direction in any manner. He maintained the order and that is how, later on, the petitioner was served with a communication dated 24th August, 2017 by which communication, the petitioner was directed to pay the balance amount. All the more, when the petitioner''s request for payment by instalments has also been accepted as an exceptional case by the Chief Commissioner of Customs. 8. The later communication dated 24th August, 2017 and the prior correspondence, according to Mr. Raichandani, would save the bar of delay and laches. His prayer is that, bearing in mind that the petitioner is a Government/PSU, we should take a sympathetic view. 9. On the other hand, Mr. Jetly would submit that such a petition, even if filed by a PSU, should not be entertained. Raichandani, would save the bar of delay and laches. His prayer is that, bearing in mind that the petitioner is a Government/PSU, we should take a sympathetic view. 9. On the other hand, Mr. Jetly would submit that such a petition, even if filed by a PSU, should not be entertained. That would send down a wrong message for an assessee can, irrespective of plural remedies available under the Customs Act, 1962, will not avail of them deliberately. He would file Petitions belatedly as in this case, and after 14 years make a grievance of an ex parte order or no hearing. Therefore, the Petition should not be entertained. 10. After hearing both sides and perusing the Petition and the annexures thereto, so also a compilation tendered today, we are of the firm view that this Court is not a forum to resolve these matters. There are remedies under the Customs Act, 1962. The order that is really in issue is dated 28th August, 2003 but issued on 3rd September, 2003. That order itself records that the show cause notice is dated 3rd October, 1997. There was no reply given to this notice. The personal hearing was fixed on 10th November and 17th November, 1997. Nobody appeared on behalf of the petitioner. Being an old file, the matter could not have been kept pending. Therefore, two more opportunities were given on 25th October, 1999 and 15th March, 2003. They were also not availed of. Finally, an assessment order was issued. That assessment order was not challenged but we find from these two annexures that the Customs Department also is partially to be blamed. If it issued a show cause notice in October, 1997, it took six years to pass an order on the same. In the process of adjudication, it issued intermittent notices for appearance to the petitioner. Further, the Department also allowed the petitioner to engage it in correspondence and though an order was passed confirming the duty demanded way back on 28st August, 2003. We have found that save and except a sum of Rs. 23,56,548/- paid on 29th March, 2010 and Rs. 25,00,000/- on 28th April, 2017, the balance amount of Rs. 1,14,05,689/- alongwith applicable interest was not paid. Since the balance amount was not paid even by installments, the recovery proceedings and by coercive means were sought to be initiated. 11. We have found that save and except a sum of Rs. 23,56,548/- paid on 29th March, 2010 and Rs. 25,00,000/- on 28th April, 2017, the balance amount of Rs. 1,14,05,689/- alongwith applicable interest was not paid. Since the balance amount was not paid even by installments, the recovery proceedings and by coercive means were sought to be initiated. 11. Thus, the petitioner paid the sums which are mentioned in para 2 of the communication dated 24th August, 2017. The payment by instalments, which is a facility extended to the petitioner, has also not been availed of. 12. To our mind, these are not satisfactory state of affairs even by a PSU. If its financial position is precarious, it could not have held back the dues and which were legitimate, due and payable in terms of an order. Now, we have a request for fresh adjudication into the same show cause notice. We do not deem it fit and proper to extend such facility or grant an opportunity at this belated stage unless the interests of Revenue are secured. 13. Purely on the facts and circumstances of this case and without this order being treated as a precedent in future cases, including of a public sector undertaking, we direct that if the petitioner pays the amount of differential duty in terms of the communication dated 24th August, 2017, copy of which is at page 32 of the paper book, within a period of three months from today and reports compliance, then, the show cause notice will be adjudicated afresh on merits and in accordance with law uninfluenced by any earlier conclusions and particularly those recorded in the order dated 28th August/3rd September, 2003. In the event no compliance is reported within this period, then, at the end thereof, the respondents can recover all outstanding sums by coercive means. We clarify that we have expressed no opinion on the rival contentions and they are kept open for being raised during the fresh round. Needless to clarify that for the period of three months from today, the respondents shall hold all recovery proceedings in abeyance.