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TMI Blog2017 (4) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... 24/87 dated 29.04.1987 in respect of all the three units. When the benefit of the notifications was denied by the department, the petitioner filed a writ petition in CWP No.1653/88 on the file of the High Court of Delhi. The said writ petition was allowed by a learned Single Judge on 22.01.1990. The department filed an appeal before a Division Bench of the Delhi High Court in L.P.A.No.23 of 1990. 5. Meanwhile, the petitioner filed a refund claim on 20.04.1990, pursuant to the judgment of the learned Single Judge of the Delhi High Court. But the department did not settle the refund claim in view of the pendency of the appeal before the Division Bench. Thereafter, the petitioner filed a Civil Suit in O.S.No.589 of 1990 on the file of the City Civil Court Hyderabad, seeking a money decree in terms of the judgment of the learned Single Judge of the Delhi High Court. Alternatively they prayed for permission to clear excisable goods without payment of duty, until such time as the amount of refund was adjusted. 6. In the said suit, the V Additional City Civil Judge, Hyderabad granted an interim injunction on 11.07.1990 restraining the department from assessing or demanding excise duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for revival was sanctioned by BIFR on 06.06.1994. The scheme was upheld by AAIFR by an order dated 19.12.1994 with some modifications. 12. It appears that the scheme sanctioned by BIFR was implemented partly, but not in full. Therefore, in December, 2001 BIFR declared the scheme to have failed. The BIFR also directed a change of management. 13. The order of BIFR was challenged before the AAIFR, which remanded the matter back to the BIFR. Again in February, 2003 BIFR declared the scheme to have failed and issued a notice for winding up. However, four months time was granted to the petitioner to come up with a final proposal. 14. The petitioner submitted a modified proposal, but the same was rejected by BIFR on 05.04.2004. The petitioner filed an appeal before AAIFR. AAIFR allowed the appeal on 12.09.2006 and remanded the matter back to BIFR for formulating a scheme for revival. 15. After remand, the BIFR sanctioned a modified scheme on 21.07.2008. Under the said scheme, the petitioner was allowed to pay an excise duty of Rs. 6.29 crores in five installments. The scheme also granted waiver of interest and penalty. 16. Contending that the order of the BIFR permitting the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e setting up the case on merits. Of course, they will be bound by the guidelines or policies framed by them in relation to sick companies. With the aforesaid observations, the writ petition is dismissed. Interim order is vacated. The parties are directed to appear before the AAIFR on 29th October, 2014, when a date of hearing will be fixed. 19. Thereafter, the appeal filed by the Department of Central Excise in Appeal No.10 of 2010 before the AAIFR was taken up for consideration on merits. But instead of considering the case on merits, AAIFR fell into an error in thinking that the Delhi High Court had clinched the issue by its observations in para-20 of the order dated 01.09.2014 in W.P.(C).No.7304 of 2011. Therefore, the AAIFR disposed of the appeal in a cryptic manner. It may be useful to extract the order dated 03.12.2014 passed by the AAIFR in Appeal No.10 of 2010 as follows: In this appeal, the appellant is aggrieved by certain provisions in the modified rehabilitation scheme which provide for waiver of interest and penalty leviable or payable by the respondent company to the appellant. This issue has been considered by the High Court of Delhi in Writ Petition (Civil) No.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be revived and rehabilitated, especially in terms of the provisions of the Central Act No.1/1986, the Central and State Governments are obliged to lend a helping hand. Since Section 32 contains a non obstante clause, the petitioner contends that the Department cannot claim anything more than what is sanctioned under the scheme. 23. After we ordered notice in the writ petition, the Department filed a counter affidavit along with an application for vacating the stay. It is contended in the counter affidavit that Section 11AA of the Central Excise Act, 1944 came into effect from 26.05.1995 and that there is no provision available in the Act for waiver of interest or penalty. Therefore it is claimed by the respondents that in the absence of a specific provision empowering the authorities to waive penalty and interest, it is not possible for them to grant a waiver of a statutory liability. Insofar as the effect of the order of the AAIFR dated 03.12.2014 is concerned, it is contended by the Department that the AAIFR left it to the Department to consider the question in accordance with law and that therefore there was no question of waiver of interest and penalty in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to give an observation in paragraph 20 of its judgment dated 01.09.2014 in W.P.(C).No.7304 of 2011. The liberty granted to the Department by the Division Bench of the Delhi High court as confirmed by the AAIFR by its order dated 03.12.2014 to consider the case of the petitioner for waiver, would tantamount to overruling any such waiver of interest and penalty, even if the same can be read into the modified scheme sanctioned by BIFR. To put it differently, if the modified scheme sanctioned by BIFR is taken to have allowed waiver, the same stood modified by the order of the Division Bench of the Delhi High Court dated 01.09.2014 and the order of the AAIFR dated 03.12.2014. The moment the Delhi High Court and the AAIFR granted liberty to the Department to examine the question of waiver and penalty, any protection granted under the modified scheme by the BIFR will be taken to have been removed. 29. Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 merely states that any scheme sanctioned under the Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law except under two specified enactments. In the case on hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be seen as a person who gained advantage from a Civil Court by way of an interim order and by the time the interim order got vacated, the petitioner secured protection under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. This protection was enjoyed by the petitioner from the year 1990 till the year 2008 when the modified scheme was sanctioned. It must be remembered that the scheme first sanctioned, failed due to the inability of the company to get revived and BIFR recommended winding up. But by repeatedly litigating, the petitioner survived. 33. In any case, 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 and hence it is dismissed. The miscellaneous petitions pending, if any, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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