2016 (7) TMI 122 - HC - Customs

Recovery of erroneous refund - validity of the ex parte judgment and decree in favor of respondent - Held that - The approach adopted by the officers of the petitioner is not appreciable but the fact remains that exchequer of the Central Government is involved and serious allegation have been made with regard to non-adjustment of the refund of money, thus, in my view that petitioner-defendant should be given effective opportunity to file the written statement putforth defence by limiting them to lead evidence within time frame. Accordingly, impugned orders are set aside. Impugned judgment and decree dated 12.02.1999 is set aside. The petitioner-defendant is granted one month s time to file written statement and thereafter parties at the trial Court shall be granted 3-3 effective opportunities to lead evidence in support of their claim and trial court shall decide it afresh preferably within a period of eight months from the date of receipt of certified copy of the order, subject to the cost of ₹ 10,000/-. - Decided in favor of revenue.

Issues:
1. Delay in filing and refiling the revision petition.
2. Jurisdiction of the Court.
3. Setting aside the ex parte judgment and decree.
4. Maintainability of the suit.
5. Failure to appear before the trial Court.
6. Refund claim and excise custom duty.
7. Opportunity to defend and lead evidence.

1. Delay in filing and refiling the revision petition:
The court condoned the delay of 9 days in filing and 40 days in refiling the revision petition based on the reasons stated in the application supported by an affidavit. The applications for condonation of delay were allowed.

2. Jurisdiction of the Court:
The petitioner, an Assistant Collector of Customs, challenged the order declining the application filed under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree. The petitioner argued that the transaction regarding the claim and refund took place in Mumbai, while the respondent's registered office was in Baddi. The petitioner contended that the Court in Amritsar did not have jurisdiction, and the respondent invoked the jurisdiction of the Amritsar Court at its convenience. The court found merit in the argument that the Amritsar Court did not have jurisdiction due to the transaction location being in Mumbai.

3. Setting aside the ex parte judgment and decree:
The court noted that the ex parte judgment and decree did not consider the refund claim and excise custom duty paid by the petitioner. It was observed that the petitioner should be given an opportunity to defend and lead evidence, without causing harm or prejudice to the respondent. The court set aside the impugned orders, judgment, and decree, granting the petitioner one month to file a written statement and allowing both parties three effective opportunities to lead evidence at the trial court.

4. Maintainability of the suit:
The petitioner argued that the suit was not maintainable based on relevant judgments of the Hon'ble Supreme Court. The court found that the suit was not maintainable due to jurisdictional issues and the lack of consideration for the refund claim and excise custom duty.

5. Failure to appear before the trial Court:
The respondent argued that the petitioner failed to appear before the trial court and that the ex parte judgment and decree should not be set aside due to the delay and lack of reasonable explanation for non-appearance. However, the court found that the petitioner should be given an opportunity to defend and present evidence.

6. Refund claim and excise custom duty:
The court highlighted the petitioner's claim regarding the refund of a specific amount for a shortage of PVC Resin and the excise custom duty paid. It was noted that these aspects were not adequately considered in the ex parte judgment and decree.

7. Opportunity to defend and lead evidence:
The court emphasized the importance of providing the petitioner with an effective opportunity to file a written statement, present a defense, and lead evidence within a specified time frame. The court set aside the impugned orders, allowing the petitioner to defend the case afresh with appropriate conditions and costs.

In conclusion, the court allowed the revision petition, setting aside the impugned orders and granting the petitioner an opportunity to defend the case with specific directions and conditions to ensure a fair trial process.

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