TMI Blog2017 (4) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... A person, who gained an advantage by an interim order of the Court, cannot subsequently turn around and seek umbrage under Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985. De hors the above, the Delhi High Court and AAIFR granted liberty to the Department to examine the question of waiver of interest and penalty. This has been done by the 1st respondent, with specific reference to the mandate of Section 11AA of the Central Excise Act, 1944. Therefore, there are no merits in the writ petition - petition dismissed - decided against petitioner. - Writ Petition No. 36553 of 2016 - - - Dated:- 24-3-2017 - V. Ramasubramanian And J. Uma Devi, JJ. For the Petitioner : Mr. P. Balaji Varma For the Respondents : Mrs Sundari R. Pisupati ORDER ( Per V. Ramasubramanian, J. ) Aggrieved by an Order in Original confirming a demand of interest under Section 11AA of the Central Excise Act, 1944, the petitioner has come up with the present writ petition. 2. Heard Mr. P. Balaji Varma, learned counsel for the petitioner and Mrs. Sundari R. Pisupati, learned Standing Counsel appearing for the respondents. 3. The petitioner is a manufacturer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as against the judgment of the Division Bench of Delhi High Court and also against the judgment of this Court. But the Special leave Petitions were dismissed and the review petitions were also dismissed by the Apex Court. 10. As a consequence, the department estimated the liability on the clearances made without payment of duty by way of adjustment, to be ₹ 6.29 crores. Therefore, six show cause notices were issued demanding a total amount of ₹ 3,49,66,090/-, towards clearances made without payment of duty during the period from 16.07.1990 to 20.01.1991. These show cause notices were adjudicated by an Order in Original dated 06.11.2001 in and by which the demand made in the show cause notices was confirmed. The Order in Original was upheld by the Commissioner (Appeals) on 11.09.2012 and the petitioner became liable to pay a total amount of ₹ 6,29,61,118/-. This liability, partly in respect of Nadicudi and Vijayawada plants and partly in respect of Vizag plant became final and there is no dispute about the quantum. 11. Even while litigating before various forums including the High Court of Delhi, City Civil Court Hyderabad and the High Court of Andhra P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the AAIFR was correct in holding the appeal of the Department to be within time or not. On this issue, the Delhi High Court held in para-8 of its order dated 01.09.2014 that the scheme sanctioned by BIFR on 21.07.2008 was without notice to the Department and without hearing the Department and that there was manifestly a violation of the principles of natural justice. The Delhi High Court also found that BIFR did not supply or send certified copy of the order dated 21.07.2008 to the Department, to enable the Department to prosecute the matter further by way of appeal. Therefore, the Delhi Court came to the conclusion that AAIFR was right in holding the appeal of the Department to be within time. 18. But unfortunately without stopping at recording an opinion on the only issue raised by the petitioner, the Division Bench of the Delhi High Court was persuaded by the petitioner also to consider the question of waiver of interest and penalty. Therefore, in paragraph 20 of its decision, the Delhi High court recorded an observation, which reads as follows: Learned counsel for the petitioner has submitted that the scheme has been substantially implemented and even payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We accordingly, dispose of the appeal with direction to the appellant to consider and decide the issue of waiver of interest and penalties in terms of the above directions of the Honble High Court of Delhi. 20. Thereafter, the Principal Commissioner issued a show cause notice dated 17.06.2014 calling upon the petitioner to show cause as to why an amount of ₹ 9,84,69,985/- should not be levied towards interest in terms of Section11AA for the period from 26.08.1995 to 29.03.2013. Challenging the said show cause notice, the petitioner filed a writ petition in W.P.No.27732 of 2015. Though notice was ordered in the said writ petition, no stay appears to have been granted in the said writ petition. 21. Therefore, the adjudicating authority took up the matter for consideration and passed the order dated 04.10.2016 impugned in the present writ petition confirming the demand. It is against the said order that the petitioner has come up with the present writ petition. 22. The only ground on which the petitioner challenges the impugned order is that once the scheme sanctioned by BIFR had attained finality with the AAIFR not granting any relief to the Department by its order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and to accept payment of excise duty/service tax outstanding as on the cut-off date over a period of seven years without any interest/penal interest/penalty. The company vide their letter dt.08.05.07, has accepted the outstanding dues of Deptt. as ₹ 6,29,62,888/- any re-payment of their dues in five (5) annual installments. (ii) To exempt ACL/its directors/officers from the penal provisions of the Excise, Cenvat, Customs and Service Tax Acts and rules made thereunder. (iii) To exempt ACL from the penal provisions of the Customs Act relating to the pre-takeover defaults. 27. It may be of interest to note that paragraph 9.4 (B)(iii) of the modified scheme provided for waiver of interest and penalty leviable under the Income Tax Act, 1961. Paragraph 9.4 (A)(i) merely exempted the company from the penal provisions of the Companies Act, Central Excise Tax Act, and service Tax, Central Sales Tax Act, Customs Act etc. There was no specific mention in paragraph 9.4 of the modified scheme sanctioned by BIFR to the effect that interest and penalty under the Central Excise Act, 1944 will be waived. In the light of the fact that a special mention was made about waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake all relevant facts into consideration and decide the same. Therefore, even if we read the modified scheme as containing a provision for waiver of interest and penalty, the same stood diluted by the judgment of the Delhi High Court, which left it to the Department to decide the question. 31. Therefore, neither the order of the AAIFR nor Section 32 of the Act is of any assistance to the petitioner, for successfully challenging the impugned Order in Original. As a matter of fact, the petitioner does not appear to deserve any sympathy, as can be seen from the long litigation that they have fought over a period about 30 years from 1988. As we have pointed out in the narration of facts, the petitioner originally filed a writ petition on the file of the Delhi High Court in CW.P.No.1653 of 1988 claiming the benefit of the notifications. Though they succeeded before the learned Single Judge, the Department went on appeal in L.P.A.No.23 of 1990. Even during the pendency of the appeal before the Division Bench, the petitioner moved a Civil Court in Hyderabad in O.S.No.589 of 1990 seeking an injunction order restraining the Department from demanding any excise duty on the clearances eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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