2013 (10) TMI 405 - HC - Central Excise

Refund / Cash assistance - Delay and Laches - The petitioner claims that they became entitled to refunds/cash assistance in terms of the policy of the respondents incorporated in letter No.F.1/2/69-EAC dated 7th January, 1970 concerning cash assistance in lieu of excise duty payable on supplies made under IBRD/IDA projects in India. - The petitioner acknowledged that they had paid the excise duty and had simultaneously mentioned that they had finally lost the case before the Supreme Court - the petitioner has submitted that the appeal filed before the Supreme Court was admitted and the civil appeal was dismissed on 21st December, 1989 Held that - The petitioner after the initial rejection had preferred appeals - The petitioner did not wait till decision of the Supreme Court to prefer appeals - The petitioner thereafter has waited from 1984 till 23rd August, 1990 to file the present writ petition - The delay in the present case is almost of six years - This delay cannot be explained and washed away on the ground that the Special Leave to Appeal was pending before the Supreme Court and was decided on 21st December, 1989 - The civil appeal pending before the Supreme Court related to a different issue; and related to classification of the goods manufactured by the petitioner under Tariff Item No.29A - Pendency of the litigation before the Supreme Court had not barred or prohibited the petitioner from making claim for refund of duty already paid. The petitioner is a company which has been involved in several litigations and is not an illiterate litigant, who lacked resources and thereby was unable to invoke writ jurisdiction earlier - They had made specific applications after making payment of the duty and had also filed appeals - when the appeals were rejected, the petitioner simply waited and slept - They did not approach the Court within a reasonable time - The writ petition was filed in 1990, after a lapse of six years from the date of rejection of the claims by the appellate authority - The claims relate to an earlier period between 1979 to 1983 - there is weeding out of files/records in Government departments - It is almost impossible to fully examine, ascertain and verify old claims - The respondents in the counter affidavit have stated that they do not have record of the petitioner s claim or applications and have solely relied upon the documents annexed with the writ petition. The petitioner has not specifically challenged or questioned the appellate orders or the orders of rejection - All appellate orders and orders of rejection have not been enclosed with the writ petition or the rejoinder affidavit - In the absence of the actual orders in all cases, it cannot be said with absolute certainty that the order of rejection in each case was identically worded or for similar reasons - Failure to specifically challenge the orders is another legal flaw and difficulty Decided against Petitioner.

Issues Involved:
1. Entitlement to Cash Assistance in lieu of excise duty.
2. Timeliness and procedural compliance of the petitioner's claims.
3. Impact of delay and laches on the petition.
4. The petitioner's conduct and its effect on the case outcome.

Detailed Analysis:

1. Entitlement to Cash Assistance in lieu of excise duty:
The petitioner, a manufacturer and supplier of air conditioning plants, sought cash assistance in lieu of excise duty for supplies made under IBRD/IDA projects, based on the policy incorporated in the letter dated 7th January 1970. The petitioner claimed entitlement to refunds/cash assistance for the excise duty paid on these supplies. However, discrepancies were noted in their applications, and it was highlighted that the excise duty was initially paid under protest through bank guarantees, not actual payment. The petitioner eventually paid the excise duty following a Supreme Court directive, but their subsequent requests for supplementary cash assistance were rejected due to non-compliance with procedural requirements and the untimely submission of claims.

2. Timeliness and procedural compliance of the petitioner's claims:
The petitioner made applications for supplementary cash assistance between March 1979 and December 1983. However, these applications were rejected due to deficiencies, such as the lack of original and unconditional gate passes and the delayed submission of claims. The petitioner was informed that their request was time-barred. Appeals against these rejections were filed but dismissed within the calendar year 1984. The petitioner did not challenge these appellate orders promptly and waited until 23rd August 1990 to file the present writ petition, resulting in a delay of almost six years.

3. Impact of delay and laches on the petition:
The court emphasized that the delay in filing the writ petition was significant and could not be justified merely by the pendency of the Special Leave to Appeal before the Supreme Court, which related to a different issue. The Supreme Court's interim order in January 1983 had already directed the petitioner to pay the excise duty, and the petitioner had made specific applications for supplementary cash assistance after this payment. The delay in approaching the court was deemed inexcusable, and the petitioner's reliance on the Supreme Court's judgment in Ramchandra Shankar Deodhar and Others vs. The State of Maharashtra and Others was found unpersuasive, as the delay was not adequately explained.

4. The petitioner's conduct and its effect on the case outcome:
The petitioner, being a company involved in multiple litigations, was not considered an illiterate litigant lacking resources. The petitioner's conduct, including making applications and filing appeals but then waiting for six years to file the writ petition, was scrutinized. The court noted that government departments typically weed out old files/records, making it challenging to verify old claims. The petitioner's failure to specifically challenge the appellate orders and the absence of these orders in the writ petition further weakened their case. The court concluded that the petitioner's claims were time-barred and dismissed the writ petition, highlighting the legal flaw and difficulty in the petitioner's approach.

Conclusion:
The court dismissed the writ petition due to the petitioner's failure to timely and adequately pursue their claims for supplementary cash assistance, the significant delay in filing the writ petition, and the procedural deficiencies in their applications. The petitioner's conduct and the lack of specific challenges to the appellate orders further contributed to the dismissal.

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