2018 (3) TMI 1145 - HC - Customs

Principles of Natural Justice - fiscal penalty - merging of company - sick company - Held that - Not only the relevant present financial position of the amalgamated company EL is before this Court nor it appears to have been examined by any competent authority in the respondent department or the respondent - DGFT himself. The waiver of interest and penalty at the time when the BIFR Scheme was sanctioned in favour of the erstwhile company KMBL, the present impugned fiscal penalty was not even asked to be waived - It is not even explained before the Court how the present petitioner which stepped into the shoes of KMBL after its merger with EL, the present petitioner EL can revive the cause after KMBL had withdrawn the challenge by withdrawal of the writ petition before the Division Bench of this Court without reserving any such liberty to reagitate the issue. The impugned order, Annexure A, dated 25.5.2006 cannot be said to be without jurisdiction or passed in breach of principles of natural justice and therefore, the said order does not require any interference - petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to order imposing fiscal penalty on a merged company under a scheme of amalgamation sanctioned by the High Court, revival scheme sanctioned by BIFR, waiver of fiscal penalty, jurisdiction of the court to interfere with the order.

Analysis:
The petitioner, a company formed through the merger of two entities, challenged an order imposing a fiscal penalty by the Additional Director General of Foreign Trade (ADGFT). The order was challenged previously in a writ petition, which was withdrawn by the company. The current petition sought to challenge the same order once again. The petitioner argued that the Board for Industrial and Financial Reconstruction (BIFR) had sanctioned a revival scheme for the erstwhile sick company before the merger took place. The petitioner also filed an application seeking the Ministry of Finance's intervention for waiver of the fiscal penalty. The Union of India opposed the submissions, stating that specific waivers were granted by BIFR only for certain taxes and duties, not including the fiscal penalty in question. The Union argued that the amalgamated company cannot claim the same benefits as the sick company and that the penalty was justified due to non-fulfillment of export obligations.

The court considered the arguments presented by both parties and found no merit in the petitioner's case. It noted that the financial position of the amalgamated company had not been examined by the relevant authorities. The court highlighted that the petitioner had not availed any remedy before the authorities to press for the waiver of the penalty on its merits. Additionally, the court questioned how the petitioner could revive the challenge after the earlier company had withdrawn its petition without reserving the right to re-agitate the issue. The court concluded that the impugned order was not without jurisdiction or in breach of natural justice principles, and therefore, it did not warrant interference under Article 226 of the Constitution of India. Consequently, the court dismissed the writ petition, finding it devoid of merits and not eligible for costs.