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TMI Blog2014 (9) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent on 14th December, 2009, but without enclosing certified copy of the order passed by the BIFR dated 21st July, 2008. In fact, the respondent had applied for the certified copy on 14th December, 2009, which was supplied to them on 6th January, 2010. Thereafter, the certified copy was filed with the appeal pending before AAIFR. 4. Learned counsel for the petitioner submits that in the present case, the respondent was made aware of the order dated 21st July, 2008, by way of letter dated 8th October, 2008 written by the petitioner enclosing therewith summary of record of proceedings held before Bench No. 1 of BIFR on 21st July, 2008. The said letter was received by the respondent on 24th October, 2008. Reliance is placed upon the letter dated 7th November, 2008 written by the Office of the Commissioner of Customs and Central Excise, Guntur to the Assistant Commissioner of Customs and Central Excise, Guntur/Vijaywada. Our attention is drawn to the legal opinion dated 17th June, 2009, obtained by the respondent from the Ministry of Law and Justice. Reliance is placed on decisions of the Delhi High Court in W.P.(C) 2207/2007, Vijay Kumar Mills Ltd. and Another vs. ICICI Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6.29 crores was due and payable to them by the petitioner company. By order dated 26th August, 2005, AAIFR restrained the Central Excise Department from taking coercive steps for recovery of dues without their permission till finalisation of the sanctioned scheme. Subsequently, on 12th September, 2006, AAIFR set aside the order dated 5th April, 2004 and remanded the matter to BIFR with certain directions. (g) The petitioner, by their letter dated 8th May, 2007 addressed to Central Excise Department, acknowledged their liability to pay Rs. 6.29 crores. It was also stated in the said letter that the petitioner had already requested the BIFR to include this liability in the sanctioned scheme. (h) The respondent by their letter dated 20th February, 2008 informed the Registrar, BIFR that Central Excise dues of Rs. 6.29 crores were pending and should be included in the revival package so as to clear the arrears and issuance of order be informed to them. (i) In spite of the said letter, BIFR did not inform or communicate any date of hearing to the respondent. The draft scheme, which contained clauses or stipulations with regard to waiver of penalty and interest, was not made available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st or penalty. (The modified scheme refers to period of 7 years and 5 annual instalments for payment but the learned counsel for the petitioner has stated that the scheme, which was actually sanctioned, postulated payment of dues in 5 years). 9. It is apparent and manifest that there was violation of principles of natural justice. This is why the Revenue had filed an appeal, inter alia, stating that the order directing complete waiver of interest and penalty should not have been passed without hearing them and without their point of view being considered and examined by the BIFR. It is submitted on behalf of the respondent-Revenue that settlement cannot be forced and imposed on an unwilling party and whether or not to accept the terms had to be decided by the Central Excise authorities in accordance with law as per the guidelines in vogue and applicable. 10. It is noticeable that the BIFR did not supply or send certified copy of the order dated 21st July, 2008 to the respondent-Revenue, though concessions had been directed in the sanctioned scheme as no interest or penalty was payable and the principal amount was to be paid in five annual instalments. 11. By letter dated 8th Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the BIFR. The appeal should be filed within 45 days from the date on which a copy of the order was issued to him and on sufficient cause being shown, the time can be extended up to 60 days in terms of the first proviso. Reference was thereafter made to Regulation 15 of the Board for Industrial and Financial Reconstruction Regulations, 1987, which reads as under [see (1987) Comp Cas (St.) 153] :- "15. Authentication and communication of order of the Board.- (1) All orders and decisions of the Board shall be authenticated by the signature of the Chairman or any other member, or the Secretary, or any other officer empowered in this behalf by the Chairman, and bear the official seal of the Board. (2) Every order of the Board shall be communicated under the signature of the Secretary or any other officer of the Board duly empowered by the secretary, in this behalf." 13. Referring to the requirements of Regulation 15, it was elucidated that BIFR"s order duly authenticated was required to be communicated and, secondly, the communication should be the under signature of the Secretary or any other officer empowered by the Secretary on his behalf. The manner in which the order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omputing the period of limitation, prescribed under Section 25 of the Act the period from 29th April 1998 to 9th September 1998 has to be included. For coming to aforesaid conclusion AAIFR noted that respondent No.3/company who was the applicant before the BIFR had Along with its letter dated 29th April 1998 enclosed a copy of the order passed by BIFR. The stand of petitioner was that on coming to know of order passed by BIFR, an inspection was made of the records on 20th August 1998, and an application for certified copy was filed on the same date. The certified copy was made available on 9th September 1998. Appeal was filed on 19th November 1998 and therefore period from 29th April 1998 to 9th September 1998 has no relevance. As indicated above, AAIFR came to the conclusion that the supply of copy of the order passed by BIFR to the Chairman of the Central Board of Direct Taxes constitutes a proper service and the starting point of limitation has to be from the date it was so supplied i.e. 29th April 1998. An application for review of the order was also not entertained and rejected." 16. Facts in the case of Vijay Kumar Mills Ltd. (supra) are distinguishable. In the said case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, proceeds on its own facts and records several reasons why the petitioner trade union was not entitled to the relief sought. 18. Decision in Girdhar Lal M. Pittie and Anr. (supra) is also distinguishable on facts. In the said case, reference was made to Section 114 of the Evidence Act, 1872. It was observed that representatives of the petitioners were present before the BIFR when the impugned order dated 18th March, 1997 was passed. The sanctioned scheme in the said case required the co-promoter to bring over Rs. 33 crores and AAIFR had noted that the co-promoters had already brought in Rs. 17 crores towards implementation of the sanctioned scheme. Further, the co-promoter had stated that 50 per cent of the one-time settlement amount had been paid and the balance amount was to be paid as per the stipulations of the sanctioned scheme. The claim of the petitioner therein was that they had not received certified copy of the order passed by the BIFR dated 18th March, 1997. The Court noticed that application for obtaining certified copy of the said order was filed on 26th March, 1997. The petitioners then claimed that the said application was rejected. In order to verify the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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