9911796707
TMI Blog2014 (9) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the Petitioner No.1 is concerned, it is a public limited company and having it's registered office at the address mentioned in the cause title. The Petitioner Nos.2 and 3 are the purchasers of a flat which belongs to the Petitioner No.1. The Respondent No.1 is the officer, namely, Assistant Commissioner of Customs exercising the powers under the Customs Act, 1962 whereas the Respondent No.2 is a Cooperative Housing Society which is owner of the building. In the building there is a flat being Flat No.58, 5th Floor, Chhadva Apartment, Sion Trombay Road, Chembur , Mumbai -400071 which is referred to as the said flat. The said flat was purchased under the Agreement for Sale dated 03.07.1986 by the Petitioner No.1 The share certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners took up the matter with the Respondent No.1 and requested him to clarify that there is absolutely no order passed in the case of the Petitioner No.1. Therefore, the communication dated 29.05.2013 should be withdrawn by him. However, there is no response to this request that is why the Petitioners have approached this Court. 4. The communication at the level of the Commissioner of Customs and stated to be of 29.05.2013 is referred to in the Society's letter dated 07.06.2013 addressed to the Petitioner No.2. That is at page 38 Annexure-G to the Writ Petition. Annexure-H is a copy of the letter dated 29.05.2013 addressed by the Respondent No.1 to the Respondent No.2, which reads as under: "Office of the Commissioner of Customs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sd - ( Dr.Kiran Kumar Kari, APU) Asstt.Commissioner of Customs, Tax Recovery Cell." 5. Mr.Vashi , learned Senior Counsel appearing for the Petitioners, submits that a reference to the Order in Original dated 31.05.2000, copy of which has also been annexued to the Writ Petition as Annexure-I page 42, reveals that the same is passed not against the Petitioner No.1, but one M/s Surlux Medicare. That order refers to the Company as M/s Surlux Medicare and terms it as an Importer. The Petitioner No.1 is M/s Surlux Diagnostic Limited. The submission of Mr.Vashi is that there are two distinct corporate entities and having independent legal existence. There is nothing on record which would indicate that the Commissioner of Customs is empowered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is equitable and discretionary should not be exercised to assist the parties like the Petitioners. The Writ Petition, therefore, be dismissed. 7. Having heard both sides and perusing with their assistance the Writ Petition and all annexures thereto, so also, the affidavit in reply we are not in agreement with Mr.Jetly that the exercise which the Customs Department wants to undertake can be undertaken. The attempt of the Customs Department is to show that the Group of Companies is called as Surlux Group of Companies. M/s Surlux Mediquip Limited was the parent company of M/s Surlux Medicare. From paragraph 33 of the affidavit in reply an attempt is made to show that a Group of Companies can be termed as sister companies/ concerns. Their m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been received. The inquiries that were made by the Department demonstrate that there is import of medical equipments. The import of medical equipments is at the instance of one M/s Surlux Medicare. The Importer has failed to adhere to the conditions subject to which the exemption from payment of customs duty was granted. Eleven consignments and which are subject matter of the order in original are stated to have been imported at the instance of M/s Surlux Medicare. That entity is referred to as the Importer. There is a statement recorded of Mr.Sarpotdar , General Manager of Surlux Group of Companies and it is on that basis it has been stated in the affidavit in reply that even the Petitioner No.1 owes its present existence to this Mr.Sarp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the learned Single Judge of this Court in Company Application No.218/2012 in Company Petition No.275/1995 dated 08.10.2012. The winding up order was passed against M/s Surlux Diagnostic Limited (Petitioner No.1) on 10.02.1999 in the above Company Petition. That has been recalled only on 08.10.2012. Prior thereto the Society has issued the share certificate, copy of which has been annexed at page 15 of the paper book as Annexure-A1. It is a true copy of the share certificate and which bears the endorsement at its reverse and particularly under the head "Memorandum of Transfers". There, on 06.11.1986 the flat No.58 (said flat) has been transferred to the Petitioner No.1. It is in these circumstances that we are unable to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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