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TMI Blog2009 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... om payment of interest to the Respondent No.2. 3. The facts: The factual matrix reveal that the Respondent No.2 holder of the EPCG licence pursuant to Import Export policy for 1997-2002 had imported Vermicelli plant having capacity of 750 kg per ton from Italy at 'NIL' rate of duty with export obligation condition attached to the licence. Respondent No.2 after having imported the said plant (the goods) filed bill of entry on 28.4.1999. The goods were assessed at 'Nil' custom duty since import was against EPCG licence. The Respondent No.2 had, thus, saved total duty in the sum of Rs.1,48,79,898/- which was otherwise payable @10% under Custom Notification No.111/95 dated 5.6.1995. The Respondent No.2 had executed bond and furnished bank gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chose to file an application under the provision of section127B of the Customs Act before the Respondent No.1, the Settlement Commission for settlement of interest component and praying therein the adjustment of total amount paid by it from time to time towards duty demand and further prayed for waiver of interest on the premise that it had suffered huge financial losses due to super cyclone that had occurred on 29.10.1999 in the state of Orissa, resulting in total deduction of his Small Scale Industrial Unit which made it impossible for it to discharge its export obligation apart from the huge loss suffered by it due to the act of god/nature. That is how Respondent No.2 claimed immunity from payment of interest liability. Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or authority and/or jurisdiction to grant immunity from payment of interest . In support of his submissions he relied upon the judgment of Division Bench of this court in the case of Rexnord Electronics & Controls Ltd. Versus Union of India in Writ Petition No.6238 of 2006 and Writ Petition No.6242 of 2006 on 27.9.2006 decided on 27.9.2006 (unreported) whereunder the order of Settlement Commission awarding the interest was upheld. The said Order was confirmed by the Supreme Court in Civil Appeal No.107 of 2008(224) ELT 224 (SC) with the observation that the Settlement Commission did not have any jurisdiction to waive interest. In reply, learned counsel for the Respondent No.2 urged that the payment of interest under the bond was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch stood frustrated. At any rate, the submission is that this court can certainly take into account this factor an admitted facts before remitting the matter to the Settlement Commission for consideration a fresh. That if this court comes to the conclusion that the contract still survives, then this court would be justified setting aside the order and remanding the same for consideration afresh on it's own merits. In short, the submission is that it will be futile to restore the matter back to the Settlement Commission for consideration afresh. 5. Consideration: Having heard rival parties and having taken the survey of the factual matrix, it is not in dispute that due to super cyclonic storm on 29.10.1999 the Small Scale Industrial Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal process. A contract is also discharged if a specific thing which is essential to the performance of the contract is destroyed. For example, the destruction of Music hall, where the performance was to be given. In the case of Taylor Vs. Caldwell, (1863 3 B. & S. 826) the defendant being the owners of a Music Hall, agreed to lend the use of the hall to the plaintiffs for the purpose of giving concerts therein. Before the time came for the delivery of the hall, it was destroyed by fire, so that the contract had to be abandoned after the plaintiffs had incurred considerable expenditure for its preparation. The plaintiffs sued the defendants for damages for the breach of the contract. It was held that the defendants were not liable. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks, part of the rear wall of the cinema collapsed following heavy rain, and the police authorities condemned the building. Cinema owner pleaded section 56 of the Contract Act with success. As party is excused of nonperformance, if it proves that nonperformance was due to an impediment beyond its control, and it could not have reasonably been foreseen by it at the time of making of the contract, nor could it have avoided or overcome it or its consequences. In other words due to act of god or act of nature, if the contract is frustrated party cannot be asked to perform the contract. The contract automatically stands determined and cannot be enforced through the legal process. Assuming Mr. Jetly is right in his submission that Settlement Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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