Enterprises & ANR. Vs. Union of India & Ors.  INSC 489 (5 March
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 947 OF
2004 M/s. Alex Enterprises & Anr. ..Appellants Versus Union of India &
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of the Customs Excise
and Gold Control Appellate Tribunal, New Delhi (in short the `CEGAT'). By the
impugned order the application filed by appellants seeking waiver of the pre
deposit of duty amount of Rs.42,90,226/- and penalty of Rs.20,00,000/- 1
confirmed by the Commissioner of Customs. The High Court directed deposit of
Rs.42,00,000/- on or before 30.7.2002. Since the amount was not deposited by
order dated 7.10.2002, the appeal was dismissed.
Learned counsel for the appellant submitted that the CEGAT did not
consider the various questions in its proper perspective. The appellant was
entitled to the benefits of Rule 16(a) of the Customs and Central Excise Duties
Drawback Rules, 1995 (in short the `Rules') and, therefore, the direction given
by the CEGAT was not in order.
Learned counsel for the respondent on the other hand submitted
that the appellants have been adopting various dilatory methods and have
dragged on the whole matter for nearly eight years and no interference is
called for in a matter of this nature.
A brief reference to the factual scenario needs to be noted. The
Tribunal noted with reference to the orders passed by the departmental
authorities that the position was as follows:
perusal of the impugned order shows that the recovery of Rs.42,90,226/- had
been ordered to be made from 2 the appellants as they wrongly got this amount
as draw back on the basis of 11 shipping bills vide which the export
consignments valued at Rs.2,54,30,211/- were sent by them, but the sale
proceeds of those consignments have not been so far realized by or on behalf of
the appellants in India, within the period allowed under the Foreign Exchange
Regulation Act. Therefore they were asked to pay back the amount of the draw
back under Section 142 of the Customs Act. The learned counsel has not
contested the correctness of the impugned order on merits on any material on
record. He has admitted that the sale proceeds of the consignment had not been
repatriated in India so far and that the appellants had availed the drawback of
the disputed amount. Therefore, prima facie, we do not fine any case in favour
of the appellants for allowing them total waiver of the pre deposit of the
drawback amount as well as the penalty amount.
keeping in view the facts and circumstances of the case, and the financial
hardship of the appellants as pleaded by the learned counsel, we direct the
appellants to make pre deposit of the draw back amount of Rs.42 lakhs on or
before 3 30.7.2002. On making this deposit, the requirement to pre deposit the
balance drawback amount and the penalty amount shall stand waived and recovery
stayed till the disposal of the appeal. However, it is made clear that if the
terms of this stay order are not complied with within the stipulated period,
then their appeal shall be liable to be dismissed under Section 129B of the
As noted above the time was given to deposit Rs.42,00,000/-on or
before 10.7.2002. A writ petition was filed against the order of CEGAT i.e.
Writ Petition No. 4053 of 2002. The High Court disposed of the writ petition
extending the time for making deposit till 30.9.2002 and directed to file
compliance before the CEGAT on 7.10.2002. On 7.10.2002 an application for
extension of time was filed before CEGAT stating that the appellants were
taking steps to file a review/recall application of the order passed in the
Writ Petition. The Review Petition is stated to have filed on 11.10.2002. On
22.10.2002 another application for extension of time was filed or stated to
have been filed. The Review petition was dismissed as withdrawn on 17.12.2002.
It is stated by learned counsel for the appellant that liberty was
granted to move another appropriate application seeking modification of the 4
order dated 2.8.2002. On 20.10.2002, CEGAT dismissed the appeal on the ground
that the order passed by the CEGAT and the extended time granted by the High
Court to make the deposit were not complied with. A writ petition was filed
seeking restoration of the appeal which was dismissed by the High Court on
25.3.2003. A writ petition No. 2151 of 2003 was filed with a prayer to set
aside/quash the entire subsequent proceedings. The same was dismissed by the
High Court on 25.3.2003. The appellants filed a review petition which was
numbered as RA No. 3890 of 2003 on the ground that the undue hardship aspect
was not considered by the High Court. The same was dismissed by the High Court
on 25.3.2003. SLP(C ) No. 12435 of 2003 was filed before this court against the
said order of the High Court.
was dismissed on 28.7.2003. On 1.8.2003 the present Civil Appeal was filed.
The factual scenario as noted above clearly goes to show that the
appellants adopted various dilatory methods and the present appeal is nothing
but an abuse of the process of law.
Learned counsel for the appellant submitted that the case has not
been heard on merits, and the effect of Rule 16(a) of the Rules have not been 5
considered. It is also submitted that some time may be granted to make the
deposit. Both the pleas are without any substance. The question of
applicability of Rule 16(a) could have been gone into the appeal filed before
CEGAT. That stage has not arrived at. The CEGAT was only dealing with the
application to dispense with the requirement of pre- deposit.
The conduct of the appellant disentitle them from any relief.
this appeal is dismissed as there is no substance in the same.
shall be no order as to costs.
........................................J. (Dr. ARIJIT PASAYAT)
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