TMI Blog2010 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent. [Judgment per : Rajesh H. Shukla, J. (Oral)]. - The present petition is filed under Art. 226 of the Constitution of India seeking a prayer for issuance of writ of certiorari or any other writ, order or direction quashing and setting aside the impugned order dated 11-8-1999 as well as the order dated 15-11-2007 and also the order dated 31-1-2008 passed by the CESTAT and the recovery notice issued pursuant thereto dated 24-2-2006 and also for the interim relief regarding the stay and implementation and execution of the aforesaid orders and the notice. 2. The facts of the case briefly stated are that the petitioner is a company incorporated under the Companies Act, 1956 having the registered office at Mumbai. The petitioner-company was carrying out the business of manufacturing, processing, importing, exporting and dealing in ready-made garments, made-ups, hosiery, knitted goods, yarn, textiles, jute, wool, fibre, plastics, leather goods and handicrafts of all kinds. 3. The petitioner-company applied for a duty free advance license under DEEC scheme with Mumbai Joint CCI. Thereafter the petitioner was also issued a Value Based License (under the provisions of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2-11-2006. Thereafter, again by letter dated 9-4-2007, the petitioner requested the Joint Director General Foreign Trade to confirm whether the petitioner's name appears in the defaulters list. It was replied by letter dated 11-4-2007 by the office of Joint Director General Foreign Trade that the name does not appear in the defaulters list, a copy of which is produced at Annexures G H. 7. The petitioner, thereafter, on the basis of information collected and the documents preferred an appeal before the CESTAT and the impugned order came to be passed on the grounds, inter alia, that the CESTAT ought to have appreciated that the Order-in-Original was passed without affording any opportunity to the petitioner as no notice was issued. It is further contended that it ought to have appreciated that the petitioner cannot be held responsible for failure on part of respondent No. 1 to serve the show cause notice before passing the order-in-original. It is also contended that the respondent No. 1 issued the notice beyond the period of limitation of six months as provided in Sec. 28 of the Customs Act, 1962 and therefore the action was barred by limitation under Sec. 28(1)(b) of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevailing provisions of Customs Act, 1962 as well as the then prevailing foreign policy. He further submitted that necessary bonds and declarations were executed with the customs authorities at Mumbai. Therefore, there is no suppression and referring to the details he strenuously submitted that against the advance licence bearing No. 309151, exports have been made and he has referred to the statement of exports reproduced at p. 155. Therefore, learned Sr. Counsel Mr. Kavina submitted that only by notice dated 24-2-2006 received at the residential address of one of the directors of the company with the impugned order he was informed about the demand, though the order-in-original etc. have not been served upon him, nor any opportunity has been given. 10. Learned Sr. Counsel Mr. Kavina, therefore, submitted that under the Right to Information Act, 2005. Shri Babulal Lath, Director of the petitioner-company, made an application before the Joint Director General Foreign Trade requesting for details which have been narrated in the statement of facts produced at p. 157 and he was informed vide letter dated 2-11-2006 by the office of Joint Director General Foreign Trade that they are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the show cause notice was issued and thereafter the order-in-original came to be passed recording that "it further appeared that the importer had deliberately suppressed the fact regarding the availment of input stage credit (MODVAT) on the inputs used in the manufacture of export products and obtained wrongful availment of duty, free benefits against the said license." The show cause notice was issued and as there was no cooperation the Asst. Commissioner of Central Excise was directed to ascertain as to whether the importer had availed any input stage credit on the goods exported under the aforesaid licence. 14. The Asst. Commissioner of Central Excise reported, vide letter dated 26-7-1999, that the unit of M/s. Sunbeam Garments (P) Ltd. was closed since the past two years and the whereabouts of the party were unknown and therefore the order-in-original came to be passed dated 12-8-1999 and the petitioner-company or the director has not moved any application or anything though it was an obligation for the petitioner-company or its director to inform the authorities when the unit is closed and/or to make necessary declaration as required under the laws like the Customs Act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o satisfactory explanation has been offered. The Tribunal has, therefore, observed, "ordinarily, we would have rejected the application simply on the ground that there was absolutely no explanation given for the period from 19th June, 2006 to 14th May, 2007 for the gross delay in the filing of the appeal and that even the explanation for the earlier period was wholly unsatisfactory. However, keeping in view the facts and circumstances of the case, as emanating from the record and the impugned order and the statement of the learned counsel for the applicant about readiness of the applicant to deposit Rs. 50 lakhs in order to show the bona fides of the applicant as against the impression that the proceedings of the recovery have got protracted for about seven years, we direct that on the applicant depositing Rs. 50 lakhs (Rupees Fifty lakhs only) within eight weeks from today with the revenue authorities, there shall be condonation of delay in filing of this appeal." 18. This order came to be passed on 17-1-2008 by the Tribunal and further Misc. Application for modification was filed, which is at Annexure 'M' wherein it is stated in para 2 that the applicant had handed over the pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay on pre-deposit of Rs. 50 lakhs as against the liability of Rs. 2,75,08,740/-. Having obtained this order, in order to wriggle out, a misc. application was filed stating that it is not possible to comply with it and if Shri Babulal Lath had on telephone specifically instructed learned advocate Mr. Gajera, then there was no need for learned advocate Mr. Modh on the next occasion to make an offer that they are prepared to deposit an amount of Rs. 10 lakhs. On earlier occasion if it was specifically informed and the order was passed, there was no need for making an offer by learned advocate Mr. Modh on behalf of the petitioner to deposit Rs. 10 lakhs. This reflects the attitude and falsehood. 21. Much emphasis is given by learned Sr. Counsel Mr. Kavina that for proceeding the show cause notice was not served or the order-in-original was not served till June, 2006. As it is reflected hereinabove, the Asst. Commissioner of Central Excise made an inquiry and the unit was found closed and there is nothing to show that the petitioner-company or the director had made any declaration at the time of closure of the unit or had any communication about the change of the premises or the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of discretion has laid down : "The question is one of the discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Art. 32. Similarly, in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose." Therefore, reiterating the settled position that no hard and fast rule can be laid down and it depends upon discretion, which is required to be exercised reasonably. The underlying object is not to encourage the claims and the matters which have already been disposed of. 26. Another facet of the argument which is also much emphasised by learned Sr. Counsel Mr. Kavina that there cannot be any such pre-condition of deposit of money for condonation of delay as it is a right, is required to be appreciated. It is required to be mentioned that condonation of delay is required to be considered on the basis of the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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