Natwar
Textile Processors Pvt. Ltd. & Anr Vs. Union of India & Ors [1995] INSC
20 (9 January 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Manohar Sujata V. (J)
CITATION:
1995 AIR 2256 1995 SCC (1) 753 JT 1995 (2) 31 1995 SCALE (1)95
ACT:
HEAD NOTE:
1.
Leave granted.
Heard
counsel for the parties.
2.
This appeal arises from the judgment and order of the Gujarat High Court
dismissing the writ petition filed by the appellant, being S.C.A. No. 2885 of
1986. The writ petition filed in the High Court and the Special Leave Petition
filed in this Court against the judgment of the High Court do, in our opinion,
amount to gross abuse of process of court, a fact which would be evident from
the facts stated hereinafter. We are taking the facts from the judgment of the
High Court and we may mention that the correctness of none of those facts is
disputed before us.
3. A
notice dated December
28, 1983 was served
upon the appellant by the Central Excise Authorities alleging that the
appellant had clandestinely removed power loom cotton fabrics worth Rupees
sixty two crores without payment of excise duty during the period November 24, 1979 to July 31, 1983. The allegation was that the apPellant wrongfully availed
of exemption notification and cleared the goods in an illicit manner. The
appellant challenged the validity of the said show cause notice by filing a
writ petition in the Gujarat High Court, being S.C.A. No. 4611 of 1984, which
was disposed of on September
13, 1984 under the
following order:
"No
final action pursuant to the show cause notice had been taken. It is for the
petitioners to show cause. Their complaint before us is that certain documents
on which they would like to rely, though the excise authorities have indicated
that they do not propose to rely on them, are not made available to them
despite their request and this may vitiate the proceedings now taken as it
would be in violation of the principles of natural justice. Though we have been
addressed elaborately by the petitioners' counsel, we have 33 not been
persuaded to agree that interference at this stage is called for. It is open to
the petitioners to urge all their contentions in answer to the show cause
notice including their contention as to why the copies of the documents sought
for by them are necessary for the proper conduct of their defence and as to how
non supply of those copies would vitiate the proceedings. We expect the excise
au- thorities to properly look into all the con- tentions taken by the
petitioners including the contention of non-supply of copies. It is not
necessary to consider in this petition whether those copies would be relevant
and whether if not supplied now, the proceedings would have bow held to be bad.
We do
not think, on the facts averred in the petition, any case has been made out for
interference. Hence we are dismissing the petition as premature. Dismissed.
(Emphasis
added)
4.
Against the said order of the High Court,the appellant approached this court by
way of Special Leave Petition (C) No.11569 of 1984, which was dismissed on May 6, 1985 under the following order:
"The
point as to the limitation before us can be raised in reply to the show cause
notice received by the petitioners. The request for inspection of documents can
also be raised by the petitioners, before the Collector of Customs, Central
Excise. We trust that the request will be duly considered. The Special leave
petition is dismissed accordingly." (Emphasis added)
5.
Meanwhile, the appellant had applied to the Central Excise Authorities for inspection.
of certain documents on July
16, 1984. It is
evidently this request which finds a mention in the order of this court
aforesaid. This request was rejected by the authorities on December 16, 1985. The appellant then approached the
Gujarat High Court by way of S.C.A. No. 317 of 1986 questioning the refusal of
inspection of documents asked for by him. When the writ petition came up for
hearing before a Division Bench on March 18, 1986, the appellant sought to withdraw
the writ petition. It was dismissed as withdrawn under the following order:
"Mr.
V.N. Nair on behalf of Mr. S.I. Nanavati wants permission of the court to
withdraw this petition as not pressed reserving liberty to agitate this matter
as and when he files an appeal to the Tribunal against the order of the
Collector if at all such an eventuality arises. Permission to withdraw is
granted with the above said observations and as such this writ petition is
dismissed as withdrawn.
"
(Emphasis added)
6. It
is obvious that the appeal to the Tribunal contemplated in the aforesaid order
was an appeal against the final orders passed pursuant to the show cause
notice.
The
idea was that the appellant can raise all questions which are open to him in
law in such appeal. However, seeking to misinterpret the said order of the High
Court the appellant filed an appeal before the CEGAT against the very same
order dated December 16, 1985. On the Tribunal ex- pressing a doubt as to the
maintainability of the appeal, the appellant withdrew the appeal unconditionally.
It was dismissed as withdrawn on May 15, 1986.
7.
Within two weeks of the dismissal of its appeal by the Tribunal, the appellant
34 again approached the Gujarat High Court, during the summer vacations, in the
last week of May, 1986. the prayers in the writ petition arc to the following
effect:
"(A)
This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other
writ in the nature of mandamus directing the respondents to give the inspection
of the documents mentioned at serial Nos. 1, 2 and 4 in the letter dated 16th
July, 1984 which is at Annexure-D to this petition.
(B)
The Hon'ble Court may issue an appropriate writ, mandamus or direction or order
quashing and setting aside the order passed by the Collector of Central Excise
and Customs, Baroda dated 16th December, 1985 which is at Annexure-C to this
petition."
8. It
is evident that the writ petition was directed against the very same order of
the Excise Authorities (dated December 16, 1985) which was already the subject
matter of S.C.A. No.317 of 1986, which was dismissed as withdrawn without
reserving any liberty to the appellant to approach the High Court again and
which was also the subject matter of appeal before the Tribunal which too was
withdrawn by the appellant unconditionally. Even so, the appellant succeeded in
obtaining an interim order from the High Court on June 23, 1986 which order was
extended to September 1, 1986 pending final orders. While extending the interim
order, the court directed the matter to be posted for admission on September
22, 1986. It did not so come up for admission, whereupon, the respondents
(Central Excise Authorities) moved the court for hearing the matter. It was
found that the 10. record was missing. By an order dated October 7, 1989, the
court directed the, record to be reconstructed and thereafter it was posted
_before a Division Bench for final hearing. The above facts impelled the High
Court to make the following observations:
"It
is rather shocking and much painful to note that the matter filed in the year
1986 has remained at the admission stage till today. The facts disclosed prima
facie reveal a very &stressing state of affairs. Had it been a matter
pertaining to lower court or any other Government Department we ourselves would
have given appropriate directions for holding inquiry and for suitable actions
to be taken persons responsible for such lamentable lapse. However, since the
question pertains to the administration of the High Court itself, we ourselves
would rather refrain from passing any such order. But we direct the Registrar
of the High Court to place a copy of this judgment before the learned Chief
Justice drawing his attention to this aspect. We hope and trust that the
learned Chief Justice will take suitable effective actions in the matter, with
a view to find out as to who is responsible for the disappearance of the papers
and why this was not brought to the notice of the learned Chief Justice or to
the notice of the Court taking up such matters and what steps are required to
be taken for preventing recurrence of such incidents. We hope and trust that
suitable effective actions will be taken against persons who may be found
responsible for causing disappearance of the papers and also against persons
who did not and/ or could not prevent such thing to happen.
9. The
writ petition was accordingly dismissed.
10. In
the Special Leave Petition filed in this court, the following order was made on
December II, 1989:
35
"Issue notice on the special leave petition returnable on 6.2.90, state in
the notice that the matter will be disposed of at the notice stage. In the
meantime proceedings may go on but no final order will be passed.
It is
stated that the proceedings are at the stage where the cross-examination of the
witnesses called by the department is in progress. It is further stated that
the diaries which arc the subject matters of this adjudications the witnesses
called will not be cross-examined. In that view of the matter proceedings to
that extent arc stayed.
11.The
record does not disclose that the Special Leave Petition was posted on February
2, 1990 as directed in the aforesaid order. It was posted only sometime towards
the end of 1994. It is not known who is responsible for this state of affairs.
This Court intended that the matter will be disposed of at the notice stage
itself soon after the service of the notice on the respondents. The notice on
the respondents was served immediately and in fact they filed their
counter-affidavit as early as March 26, 1990. Even so, the matter was not
posted before the court. It is equally surprising that the respondents too did
not choose to take any steps for having the matter posted early. The Registrar
General is directed to bring this matter to the notice of the Hon'ble Chief
Justice for apppropriate action to determine the capability, if any, of any
member or members of any members of the registry of this Court in not carrying
out the orders aforesaid.
12.The
facts stated above disclose how persons without scruples are abusing the system
of administration of justice in this country. They forget that the courts are
there for honest litigation. They think and they try to use the courts to
advance their oblique ends and in the process the courts, the very system, is
getting a bad name. Look at the facts of this case. The show cause notice was
issued in December, 1983. It was questioned immediately by the appellant by way
of writ petition which was dismissed in September, 1984. The appellant carried
the matter to this court, which was dismissed in May, 1985. Meanwhile, he had
applied for inspection of certain documents which was rejected in December,
1985. He filed a writ petition against the said refusal and withdrew it without
seeking and obtaining the leave of the High Court to approach it again.
Trying
to misinterpret the orders of the High Court, he sought to file an appeal
before the Tribunal which was not maintainable in law. When that was pointed
out, he withdrew it unconditionally. Then he filed another writ petition
against the very same order of December, 1985 which was the subject matter of
S.C.A. No. 317 of 1986 in the Gujarat High Court and an appeal before the
CEGAT, both of which were withdrawn unconditionally. This latest writ petition
could not be disposed of early because the records were said to be missing; the
records had to be re-construed. The writ petition was dismissed with strong
condemnation of the appellant's conduct. Inspite of the same, the appellant
comes to this court and evidently without disclosIng all the facts, obtained an
interim order in December, 1989. Though this court intended to dispose of the
matter within a couple of months, the Special Leave Petition did not see the
light of the day for a period of about five years with the result that a period
of eleven years, the show cause notice could not be proceeded with. -Me
appellant has been doing this because he thinks that even if he is liable to
pay and duty pursuant to the show cause no- 36 tice, he would not be liable to
pay interest thereon since the Act does not provide for granting of interest.
According
to the show cause notice, the duty payable is over Rupees ten crores. In our
opinion, the very filing of the writ petition, S.C.A.2885 of 1986, is a gross
abuse of the process of the court and so is the present Special Leave
Petition/Civil Appeal. It is necessary in the interests of justice that such
tactics should not be allowed to pass mus- ter and should, in no event, be
allowed to benefit the persons indulging in them. Stringent terms have to be
imposed so that not only the appellant but others minded like him should know
that they should not play with the courts and that if they do so, they should
not complain if they are mauled in the process. This is the price of abus- ing
the process of court. The court which is seized of the matter has the undoubted
power to make such orders as it thinks just and necessary to meet the ends of
justice. It should be, remembered that it is the respondent who has invoked the
jurisdiction of the High Court and this Court.
13.Sri
Ashok Desai, learned counsel for the appellant submitted that his. request for
inspection of the documents is a justified one and that all that the appellant
wanted to know was the names of the officers who- visited the appellant's
factory, the dates and time of their visit so as to enable it to defend itself
effectively. We are, however, not prepared to entertain the said submission
inasmuch as the Gujarat High Court had rejected this very submission in the
earlier writ petition, S.C.A. No. 317 of 1986, with the observation that all
these questions can be agitated by the appellant as and when he, files an
appeal before the Tribunal against the orders of the Collector, in case the
Collector decides against him. The said order has become final and cannot be
re-opened in a subsequent writ petition.
14.The
appellant has filed written submission wherein it is stated that a similar
request for inspection of documents is pending consideration in the case of
another assessee in S.L.P. (C) No. 22023 of 1993 (Birla Jute Industries v.
Union of India). The appellant has also sought to make out a justification for
his request for inspection. However, for the reasons stated above, the said
submission could not have been raised in the writ petition from which this
appeal arises for the reason stated in the preceding para. The appellant has
also sought to blame the Central Excise Au- thorities for not moving fast for
vacating the orders passed by the court or for early disposal. We are surprised
at this logic. While we agree that the revenue authorities have been lax in not
moving for early disposal of the matter, in this court at any rate, that does
not explain, condone or justify the conduct of the appellant. So far as plea of
fairness in action is concerned, it is well to remember that fairness is not a
one-way street. The authorities are undoubtedly bound to act fairly but so is
the assessee - more particularly, when he to invoke the discretionary
jurisdiction of the High Court or of this Court. No person has a licence to act
unfairly and yet call upon others to act fairly.
15.For
the above reasons, the civil appeal is dismissed with costs. The costs payable
by the appellant to the respondents are assessed at Rs. 15,000/-. It is further
directed that in case any duty is found payable pursuant to the show cause
notice mentioned above, the same shall be payable by the appellant with
interest @ 18% 37 p.a. calculated from the date of show cause notice upto the
date of payment. It is also directed that the appropriate Central Excise
Authorities shall dispose of the matter expeditiously and that no Court or
Tribunal shall interdict the said proceedings until final orders are passed
thereon.
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