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CX - Belated challenge to O-in-O - Court is not inclined to exercise its discretion under Article 226: High Court


By TIOL News Service

CHENNAI, JULY 11, 2018: AGAINST O-in-Odated 27.2.2009 , an appeal was filed before the CESTAT, which by its order dated 01.02.2010 directed the petitioner to make a pre-deposit of Rs.1 crore. A modification application was filed by the appellant/petitioner but the same was rejected and, accordingly the appeal was dismissed by Tribunal on 07.06.2010.

An appeal was filed but the Division Bench, by judgment dated 13.2.2015 , dismissed CMA. No.61 of 2015 -   2015-TIOL-467-HC-MAD-CX. In doing so, the Division Bench not only rejected the appeal on the ground that there are no substantial questions of law involved but approved the findings rendered by the Tribunal with regard to the merits of the case as well as the conditional order to pay Rs.1 Crore.

The appeal filed before the Supreme Court was also dismissed on 12.10.2015 . And the review petition too met a similar fate on 18.02.2016 . So much so that even the curative petition failed to make any change in the fortunes of the petitioner – the same was dismissed by order dated 12.01.2017.

After all these events, the petitioner is again before the Madras High Court challenging the Order-in-Original dated 27.2.2009.

The High Court considered the facts of the case and observed - at this distance of time, this Court cannot entertain a challenge to the Order-in-Original dated 27.2.2009.

The petitioner placed reliance on the decision of the Full Bench of the High Court of Hyderabad for the States of Telangana and Andhra Pradesh in the case of  Electronics Corporation of India Ltd. Vs. Union of India - 2018-TIOL-484-HC-AP-CX-LB wherein it is held that the High Court, under Article 226 of The Constitution of India, would exercise its discretion judicially on the facts of the individual case and would examine as to whether the challenge made by such writ petitioner should be entertained and what would weigh with the Court is as to whether gross injustice would result from non consideration of the challenge sought to be laid against the Order-in-Original.

Negating this submission, the High Court added –

"12. In the instant case, this Court is not inclined to exercise its discretion for more than one reason. Firstly, the matter involves a commercial transaction and it is not as if the petitioner was not aware of their rights. A cursory reading of the Order-in-Original dated 27.2.2009, which runs to more than 55 pages, shows that extensive search and seizure operations were conducted in the place of business of the petitioner as well as the residential premises of the partners, statements were recorded, documents were seized and after analyzing the facts, an order came to be passed. There is also a finding to the effect that the petitioner created bogus records. The petitioner went before the Tribunal alleging that they were not granted an opportunity to cross examine a particular person. This aspect was specifically considered by the Tribunal and rejected by order dated 01.2.2010. Thus, on facts, this Court is of the view that the petitioner has not made out any case for exercise of discretion in their favour to maintain such a belated challenge to the Order-in-Original. Such a challenge is not maintainable in the light of the factual position set out above."

The writ petition was dismissed.


(See 2018-TIOL-1305-HC-MAD-CX )


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