2021-TIOL-588-HC-MUM-CX

Eureka Fabricators Pvt Ltd Vs UoI

CX - Writ Petition has been filed for quashing of order dated 11.09.2020 passed by the respondent No.3 i.e. the Designated Committee and further seeking a direction to the respondents to settle the declaration of the petitioner dated 20.09.2019 filed under SVLDRS, 2019 and thus granting consequential relief(s) including refund of an amount of Rs.45,60,438.00 to the petitioner.

Held: Petitioner had complied with the order dated 30 June 2020 - 2020-TIOL-1123-HC-MUM-CX and deposited Rs.55,56,045.00 with the respondents - Thereafter respondent No.3 i.e. the Designated Committee passed a fresh order dated 11.09.2020 determining the amount payable under the scheme by the petitioner at Rs.46,47,860.50 - It is this order that is impugned in the present petition - Petitioner has also challenged the rejection of its SVLDRS-4 application dated 30.10.2019 by respondent No.3 i.e. the Designated Committee on the ground of ineligibility with the following remarks : 'Applicant has not discharged the amount estimated in SVLDRS-3 in the case of M/s Eureka Fabricators, which is the main noticee in this case. Hence the application of personal penalty imposed on Director is liable for rejection' - The impugned order dated 11.09.2020 passed by the respondent No.3 i.e. the Designated Committee proceeds on the premise that under the provisions of section 123(a) of the said Act, since the petitioner has categorically admitted its tax liability of Rs.88,16,598.00 in the memorandum of appeal, the tax liability of the petitioner under the scheme is to be computed on the balance amount and the relief of 50% of tax dues under the scheme is required to be given to the petitioner only on the said balance amount which is Rs.78,10,369.00 - Respondent No.3 has arrived at the total tax payable at Rs.1,27,21,782.50 and has, therefore, called upon the petitioner to pay the net amount payable of Rs.16,47,860.50 after giving the petitioner the benefit of the deposit of Rs.1,10,73,922.00 - Applying the provisions of section 123(a) of the Finance Act, 2019, the entire duty liability of Rs.1,66,26,967.00 is to be considered as "tax dues" of the petitioner as on 30.06.2019 for the purposes of the scheme - The finding in the impugned order dated 11.09.2020 that the petitioner has admitted its tax liability of Rs.88,16,598.00 before the Commissioner (Appeals) and the Settlement Commission against the total confirmed tax of Rs.1,66,26,967.00 which, therefore, needs to be excluded from computation is, therefore, not sustainable in view of the statutory provisions - Under section 124(1)(a)(ii) of the said Act, the relief available to the petitioner under the scheme would be 50% of the entire duty liability of Rs.1,66,26,967.00 i.e. Rs.83,13,484.00 - Petitioner has made pre-deposit of the following sums towards duty liability; viz; Rs.50,00,000.00 besides Rs.5,17,877.00 and Rs.18,00,000.00 towards interest - Further, petitioner has deposited a sum of Rs.55,56,045.00 under order dated 30.06.2020 passed by this Court - The petitioner, therefore, has deposited the total sum of Rs.1,28,73,922.00 with the respondents - Petitioner would be entitled to a refund of Rs.45,60,438.00 - Designated Committee shall issue the discharge certificate in Form SVLDRS-4 to the petitioners - Respondents shall refund the sum of Rs.45,60,438.00 to the petitioner within a period of 4 weeks after issuance of SVLDRS-4 - Companion Writ Petition (L) No.4416 of 2020 in respect of personal penalty imposed on the Director also stands allowed - Writ petitions are allowed: High Court [para 13, 13.4, 13.5, 13.6, 13.7, 18, 19]

- Petitions allowed: BOMBAY HIGH COURT

Cus - Appeals have been filed challenging two separate orders passed in W.P.Nos.5499 and 5495 of 2013, both dated 09.11.2020 = 2020-TIOL-2248-HC-MAD-CUS - Writ petitions were dismissed by the Single Judge Bench on the ground that there is no acceptable explanation given by the appellant for not having resorted to the alternate remedy of filing an appeal before the CESTAT.

Held:

+ When a writ petition has been admitted and pending since 2013, it may not be appropriate for the writ petition to be dismissed, after seven years, on the ground of availability of alternate remedy under the provisions of the Act - It will also be harsh on the appellant to be now relegated to file an appeal before the Tribunal more so when, the respondent/Department had filed their counter affidavit in the writ petition seeking to sustain the Order-in-original - Therefore, Bench is inclined to take up the matter for a decision on merits, rather than to relegate the appellant to avail the alternate remedy, since the pleadings were complete in the writ petitions: High Court [para 20, 21]

+ With regard to the plea that the appellant should be permitted to cross examine every person, the Adjudicating Authority rightly pointed out that such request has to be considered based on facts and circumstances of each case. After referring to the factual matrix, the Adjudicating Authority concluded that the request for cross examination was a mere ploy and to scuttle and delay the adjudication process. The conduct of the appellant is clearly brought out in the adjudication order that he has been evading the summons and absconding and not availing the opportunity of personal hearing. [para 30]

+ Bench agrees with the finding of the Adjudicating Authority that the plea raised by the appellant demanding cross examination is only with a view to drag on the matter.

+ Adjudicating Authority has been able to bring out the facts as to how the appellant has impersonated himself, opened bank account in the name of a fictitious person, remitted customs duty by effecting cash payment in dummy bank accounts, opened in the name of an Enterprise and one Shri Rakesh Upadhaya. Therefore, Bench is of the view that the facts and circumstances of the case would clearly show that the request for cross examination is devoid of merits, lacks bonafide and rightly denied by the Adjudicating Authority. [para 31]

+ It was argued that the appellant has been framed by the investigating agency as well as the Department on the ground that he had lodged a complaint before the CBI and certain officers of the DRI have been charged. Therefore, the appellant would seek to argue that the proceedings are vitiated on account of mala fide. If this is the case of the appellant, then there should be specific allegation against the named officers against whom, he alleges malafide or bias. Admittedly, no such officer has been made a party to the writ petition. Therefore, the plea of malafide exercise of power has to be definitely rejected. [para 32]

+ Bench finds that the request made by the appellant to cross examine few of the co- noticees , who were also involved in the transaction was rightly denied by the Adjudicating Authority and no prejudice has been caused to the appellant on the said ground. The reasons assigned by the Adjudicating Authority to deny cross examination, taking note of the factual situation, is well founded. That apart, the other co- noticees have not retracted their statements rendered by them under Section 108 of the Act, which is binding. [para 37]

+ Order passed by the Adjudicating Authority does not suffer from any error of law for interfering with the same. [para 38]

- Writ appeals dismissed: MADRAS HIGH COURT