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Shri Mohan Anand And Smt. Usha Anand Versus Commissioner Central Excise Kamla Nehru Nagar, Ghaziabad

2016 (6) TMI 17 - ALLAHABAD HIGH COURT

Imposition of penalty - Section 112 of the Customs Act, 1962 - petitioners had a statutory alternative remedy of filing an appeal under Section 129(1) of the Act before the CEGAT, New Delhi and they availed it - Appeal dismissed for want of prosecution - Held that:- the petitioners cannot be permitted to keep quiet for a long period of time and then make a complaint that as the records have been weeded out they cannot file an application for recall of the order and so the writ petition should be .....

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es. - Decided against the petitioner - Writ Tax No. 509 of 2013 - Dated:- 2-5-2016 - Hon'ble Dilip Gupta And Hon'ble Ravindra Nath Kakkar, JJ. For the Petitioner : Rajeev Chaddha and Rajesh Jain For the Respondent :- B.K. Singh Raghuvanshi and Ashok Singh ORDER The Director and the Managing Director of M/s Dior International (P) Ltd. DIOR filed this petition on 1 May 2013 to assail the Order-in-Original dated 28 October 1988 passed by the Additional Collector Customs & Central Excise .....

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ed for non-prosecution on 4 November 1997. It transpires from the record that earlier on 19 September 1987, officers of the Directorate and Anti Evasion, Central Excise, New Delhi along with the officers of Central Excise, Meerut searched the premises of Dior and M/s Kapri International (P) Ltd. kapri In the said search, China made fabric measuring 61,748 yards was found in stock as against 97,217.50 yards mentioned as balance stock. Apart from this, imported polyester cotton fabric (chintz) mea .....

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was also imposed on the Group Manager (Export) and Group Manager (Import). It is against the said order dated 28 October 1988 that the Company as also the petitioners filed appeals before the Tribunal. The petitioners state that both the companies, namely, Dior and Kapri of which the petitioners were also the Director and Managing Director fell sick and liquidation proceedings were initiated before the Delhi High Court and by order dated 1 May 1995 both the Companies were ordered to be wound up .....

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Department by letters dated 22 January 2013, 15 February 2013 and 3 April 2013 asked the petitioners to deposit the amount of penalty. It is at this stage that the petitioners filed the petition challenging the order dated 28 October 1988 passed by the Additional Collector, Central Excise, Meerut. A preliminary objection has been raised by Sri Ashok Singh, learned counsel appearing for the respondent that this petition is highly belated and that the petition also deserves to be dismissed for the .....

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counsel submitted that in liquidation proceedings the winding up orders dated 1 May 1995 were passed against the said two companies and even after the dismissal of the two Appeals filed by the petitioners on account of non-prosecution, the department was requiring the Liquidator to deposit the amount due to the petitioners as also against the Company and so the petitioners were justified in approaching the Court in 2013 since it is then that the Department required the petitioners to deposit th .....

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he end has submitted that the Court may consider imposing costs on the petitioners for the laches. Sri Ashok Singh, learned counsel appearing for the respondent has, however, submitted that there was no reason as to why the petitioners should not have pursued the appeals before the Tribunal against the orders imposing penalty and even if the appeals had been dismissed for non-prosecution, nothing prevented the petitioners from filing an application for recall of the order. Learned counsel submit .....

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s. We have considered the submissions advanced by the learned counsel for the parties. In the present case an order was passed by the Additional Collector, Central Excise, Meerut on 28 October 1988. Against the said order a statutory remedy of filing an appeal was available to the petitioners under Section 129(1) of the Act and the petitioners availed the remedy. The appeals filed by the petitioners were dismissed on 4 November 1997 for non-prosecution. There is nothing on record to indicate tha .....

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January 2002 does not indicate that the Superintendent had asked the Official Liquidator to deposit the dues of the petitioners. The letter clearly mentions the name of the party as Dior and Kapri and it does not record the names of petitioners. Likewise, the subsequent communication dated 31 December 2004 also does not make any reference to the names of the petitioners and it only refers to Dior and Kapri. There was, therefore, no reason for the petitioners to believe that the penalty that was .....

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uld have pursued the two appeals but the appeals were dismissed for non-prosecution. There is no averment in the writ petition that the petitioners made any attempt to find out the fate of the appeals. Any responsible person holding such a high position in the Company would have at least enquired about the fate of the Appeals. It is not a case where the laches are for a year or so, but we are concerned with laches which are of about 25 years. In N. Balakrishnan (supra) the Supreme Court observed .....

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on whether he should pursue the remedy of an appeal since he is legally injured, while State is an impersonal machinery working through its officers or servants. Considered from this perspective the Supreme Court condoned the delay of 109 days in filing the appeal by the State Government. In Ram Nath Sao (supra) the Supreme Court observed that "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction .....

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