9911796707
TMI Blog2014 (9) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... lia, 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. AAIFR has rightly relied on the decision of a Division Bench of this Court in Director-General of Income Tax (Admn) vs. Board of Industrial and Financial Reconstruction and Ors.,[2000 (8) TMI 981 - HIGH COURT OF DELHI]. - Decided against assessee. - Writ Petition (Civil) No. 7304/2011 - - - Dated:- 1-9-2014 - Sanjiv Khanna And V. Kameswar Rao,JJ. For the Petitioner : Ms. Maneesha Dhir, Ms. Geeta Sharma, Mr. Ujjwal Jain and Ms. Sadvi Shahi, Advocates. For the Respondents : Mr. Satish Kumar, Sr. Standing Counsel. JUDGMENT Sanjiv Khanna, J. (Oral): Andhra Cement Ltd. petitioner has filed this writ petition impugning order dated 12th August, 2011 passed by the Appellate Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r General and Others vs. Living Media India Ltd. and Anr, (2012) 3 SCC 563 to highlight that lackadaisical approach should not be condoned and delays in matters of this nature could cause prejudice. It is highlighted that the petitioner has already made full payment of the principal amount under the rehabilitation scheme and Customs, Excise and Gold (Control) Appellate Tribunal has allowed the appeal of the petitioner quashing penalty and interest in view of the order dated 21st July, 2008 passed by the BIFR. 5. To appreciate the said contentions, we would like to record basic and relevant facts, viz., (a) The petitioner herein is a company engaged in the activity of manufacture and sale of cement. (b) In 1990, they filed a reference under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (Act, for short) before the BIFR and by order dated 23rd July, 1990, were declared sick . IDBI was appointed as an operating agency. (c) By order dated 6th June, 1994, a rehabilitation scheme was sanctioned, but the same was challenged by the outgoing promoters as the scheme envisaged change of management. AAIFR on 19th December, 1994, sanctioned the scheme with cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 08.05.07 to them, admitted the total outstanding liability of the Deptt. as ₹ 6,29, 62,888/- and he finally-, requested the BIFR to include repayment of this outstanding dues in the revival scheme being formulated/considered by the Board. The Board noted that the Company M/s ACL requested the Deptt. for inclusion of repayment of this outstanding liability in the modified draft revival scheme (MDRS), in five (5) annual installments. 7. The modified rehabilitation scheme, which was approved, paragraph 9.4 (c) relating to Central Excise, Customs and Service Tax Authorities, stipulated:- (i) To waive entire interest and penalty levied or leviable on Excise Duty and Service Tax Arrears and to accept payment of excise duty/service tax outstanding as on the cut-off date over a period of seven years without any interest/penal interest/penalty. The company vide their letter dt. 08.05.07 has accepted the outstanding due of Deptt. As ₹ 6,29,62,888/- and re-payment of their dues in five (5) annual instalments. (ii) To exempt ACL/its directors/officers from the penal provisions of the Excise, Cenvat, Customs and Service Tax Acts and rule made thereunder. (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors., (2001) 104 Company Cases 233. In the said case, BIFR had passed an order dated 3rd April, 1997. The petitioner therein was not a party to the proceedings before the BIFR. Subsequently, the petitioner therein filed an appeal, which was dismissed by the AAIFR on the ground that it was barred by limitation. The certified copy of the order was applied for by the petitioner therein on 20th August, 1998 and was received on 9th September, 1998. Thereupon, appeal before AAIFR was filed on 19th November, 1998. Earlier the petitioner herein had received a copy of the order of the BIFR dated 3rd April, 1997 with letter dated 29th April, 1998, written by the assessee. The Division Bench referred to Section 25 of the Act, which for the sake of completeness is reproduced below:- Section 25-Appeal (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority: Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the B.I.F.R. to the petitioner. Therefore the starting point has to be the date on which the certified copy was handed over i.e. 9th September, 1998. If that is to be taken to be the starting point, appeal is within permissible extended time limit. The view of the AAIFR that appeal was barred by limitation is not correct. 15. We notice that the facts of the present case are almost identical insofar as the respondent-Revenue s case is concerned; that they were not made a party to the BIFR proceedings and, secondly, the record of proceedings held on 21st July, 2008 before the Bench No.1 of BIFR, which required concessions to be given, was not communicated to them under signature of the Secretary or any other officer duly empowered by the Secretary on his behalf. We have noted the respective dates, which were recorded in the decision of the Delhi High Court in Director General of Income Tax (supra), also the letter of intimation sent enclosing copy of the order to the Income Tax Department on 29th April, 1998, but application for certified copy and records was filed on 20th August, 1998 and certified was obtained on 9th September, 1998. Appeal before AAIFR was thereafter file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Mills Ltd. as per law. It was in these circumstances that the Court had observed that the petitioner therein in spite of being aware of the BIFR order, which was passed in the presence of the petitioner s authorised representative, applied for certified copy beyond the period of 60 days. AAIFR, therefore, was right in dismissing the appeal. The Court further observed that the petitioner therein was not serious about revival of the company and wanted to enjoy the conditional interim order passed without ever submitting a rehabilitation scheme, did not justify interference and disentitled the petitioner therein to the equitable and discretionary relief under Article 226 of the Constitution of India. 17. Similarly, in the case of Textile Labour Union, Nadiad (supra), a trade union had preferred an appeal. It was noticed that one of the office bearers of the said union had written letters to the operating agency in July and August, 2001, showing their knowledge and thereafter, the said office bearer had accepted the scheme in principle and had agreed for participation with other stake holders. The Court observed that the contention of the trade union that they were not aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are equally bound by the law of limitation and should adhered to the time schedule. Under the normal civil law relating to the Court proceedings, an aggrieved party has to apply for the certified copy to the copying agency. In this context, observations and criticism was made for the substantial delay in applying for the certified copy. On the other hand, in the present case, the certified copy should have been supplied as per the applicable regulations. Right to be furnished and supplied a certified copy is a right under the said regulation. It is only when the certified copy was not served or received, that the respondent applied for supply of copy of minutes of proceedings dated 21st July, 2008 and these were then enclosed with the grounds of appeal. Thus, the impugned order does not merit interference for several reasons. 20. Learned counsel for the petitioner has submitted that the scheme has been substantially implemented and even payment of the principal amount has been made. This may be correct. The issue, which remains is, whether or not interest or penalty should be paid or levied under the Central Excise Act, 1944. This is a separate issue. We hope and trust the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
