2016 (1) TMI 474 - HC - Customs

Validity of petition - whether there is before this Court, any petition filed by a person in existence and through a properly authorized person. - Fixation of brand rate of duty drawback - It has been enquired from the counsel for the petitioner that once it is the averment in the petition itself that M/s Bimla Industries has as far back as on 1st July, 2004 merged with M/s Maa Kalyani Kitchenwares Ltd. and thereby ceased to exist, how has this petition been filed in the name of M/s Bimla Industries and how can Mr. Ashok Kumar Kansal today purport to act as proprietor thereof. - Held that - The answer to that question has to be in the negative. Neither does M/s Bimla Industries exist as on date on which the petition was filed nor can Mr. Ashok Kumar Kansal represent himself to be the proprietor thereof and sue in the name of M/s Bimla Industries. There is another aspect of the matter. As aforesaid, the claim pertains to more than 15 years back i.e. August, 1989 to September, 2001. The petitioner did not pursue the same. Though as per the recommendation dated 15th July, 2008 supra only the claims of those were to be considered who had filed writ petitions and which writ petitions were pending and M/s Bimla Industries was admittedly not covered thereby but the applications of M/s Bimla Industries appear to have been erroneously revived. The said erroneous revival was contrary to the policy decision / recommendation dated 15th July, 2008 and would not vest any right in the petitioner. No ground for entertaining the petition is made out. Dismissed.

Summary

Issues:
1. Mandamus sought for fixation of brand rate of drawback and release of amount.
2. Validity of the petition filed by M/s Bimla Industries through its proprietor.
3. Entitlement of Mr. Ashok Kumar Kansal to pursue the claim of M/s Bimla Industries.
4. Consideration of claims dating back to August 1989 to September 2001.
5. Effect of the policy decision/recommendation dated 15th July 2008.
6. Extending the period of limitation for filing the petition.

Issue 1: Mandamus sought for fixation of brand rate of drawback and release of amount.
The petition sought mandamus for the respondents to fix the brand rate of drawback and dispose of applications filed by the petitioner. The Commissioner of Central Excise (Appeals) had directed a re-examination of the applications, but the applications were not decided despite subsequent dismissals of appeals and revision petitions. The petitioner raised grievances regarding the non-decision of the applications.

Issue 2: Validity of the petition filed by M/s Bimla Industries through its proprietor.
The court questioned the validity of the petition filed by M/s Bimla Industries through its proprietor, Mr. Ashok Kumar Kansal, considering that M/s Bimla Industries had merged with another entity in 2004 and ceased to exist. The court noted that Mr. Ashok Kumar Kansal could not represent himself as the proprietor of M/s Bimla Industries and sue in its name.

Issue 3: Entitlement of Mr. Ashok Kumar Kansal to pursue the claim of M/s Bimla Industries.
The petitioner contended that Mr. Ashok Kumar Kansal, as the proprietor of the merged entity, should be entitled to pursue the claim of M/s Bimla Industries. However, the court found that Mr. Ashok Kumar Kansal had settled all claims with the merged entity, and therefore, was not entitled to enforce any outstanding claims in the name of M/s Bimla Industries.

Issue 4: Consideration of claims dating back to August 1989 to September 2001.
The court observed that the claims dated back to a period between August 1989 and September 2001. Despite recommendations in 2008, the applications of M/s Bimla Industries were erroneously revived, contrary to policy decisions. The court emphasized that the petitioner did not pursue the claims diligently, allowing them to become stale.

Issue 5: Effect of the policy decision/recommendation dated 15th July 2008.
The court highlighted that the erroneous revival of applications of M/s Bimla Industries was against the policy decision/recommendation dated 15th July 2008. The revival did not confer any rights upon the petitioner, and the claims were not pursued diligently, leading to their staleness.

Issue 6: Extending the period of limitation for filing the petition.
While acknowledging that no limitation was provided for filing the petition, the court emphasized the importance of adhering to the provisions of the Limitation Act, 1963. The court held that merely writing letters did not extend the period of limitation, and due regard must be given to the provisions of the Limitation Act. Consequently, the court dismissed the petition, finding no grounds for its entertainment.

This comprehensive analysis of the judgment addresses the various issues involved in the case, highlighting the court's reasoning and conclusions on each aspect.