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TMI Blog2004 (11) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... gs in its factory at Pondicherry and Cuddalore. For the purpose of manufacturing drugs, the petitioner imports raw material. The Notification No. 203/92, dated 19-5-1992 issued under Section 25(1) of Customs Act exempted whole of the duty payable on the inputs imported into India against a Value Based Advance Licence (hereinafter referred to as "VABAL"), provided the export obligation is discharged by exporting goods manufactured in India in respect of which no input stage credit was obtained under Rules 56A or 57A of the Central Excise Rules, 1944. During the period between June, 1993 to March, 1995, the petitioner imported input under various VABALs and availed exemption under the said notification. The petitioner had taken Modvat credit under Rule 57A of the Central Excise Rules on the indigenous inputs which were also used for the manufacture of end product and cleared for home consumption on payment of Central Excise duty. After carrying out the export, the Modvat credit taken in respect of inputs used in the manufacture of drug were reversed on actual use basis. 5. The second respondent, the Commissioner of Customs, Chennai issued a show cause notice on 24-7-1995 in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit. Out of the amount of Rs. 19,23,371/-, Rs. 18,27,721/- was reversed on 31-1-1997 and the balance on 6-2-1997. 9. After further verification, on 3-9-1997, the Assistant Commissioner of Central Excise, Pondicherry issued certificate in terms of Scheme and the circular, certifying that the petitioner has reversed the Modvat credit of Rs. 83,01,114/- and interest of Rs. 20,80,304/-. 10. Subsequently, on 15-9-1997, the Superintendent of Central Excise, Pondicherry informed the petitioner that the reversal interest in RG23A Part II account was not in conformity with the circular dated 10-1-1997 and directed the petitioner to remit the interest by cash. The said direction was complied with by the petitioner on 16-10-1997 by making cash payment of Rs. 20,85,305/-. Again, on 29-10-1997, the Assistant Commissioner, Central Excise, Pondicherry issued a revised certificate to the effect that the petitioner reversed Modvat credit of Rs. 83,01,114/- and interest of Rs. 20,80,305/- in their RG 23A Part II account in respect of the export made under the VABAL scheme. 11. On production of the certificate, the second respondent passed an order on 17-4-1998 in favour of the petitioner by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the order of the Supreme Court in the civil appeal. The writ petition under Article 226 cannot be maintained which otherwise amount to an appeal over the judgment of the Supreme Court. 2. The petitioner was allowed to withdraw the Civil Appeal by the Supreme Court on a request made by the petitioner to go before the first respondent by filing an application for rectification of mistake. The petitioner having filed such an application before the first respondent, ought not have withdrawn the same and filed a writ petition under Article 226. 3. As against the order of the first respondent, a statutory appeal is provided before the Division Bench of the High Court under Section 130(7) of the Customs Act. Departing from that statutory provision, a writ petition under Article 226 is not maintainable. 4. On merits, though a substantial portion of the Modvat credit had been reversed prior to 31-1-1997, interest had been paid in cash only after the cut-off date. The Scheme has to be strictly construed. As the petitioner failed to comply with the conditions within the cut off date, they are not entitled to the benefit. 5. The Scheme had been issued with reference to the VABAL lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of maintainability of writ petition : 19. To bring home the objection as to the maintainability of the writ petition, learned Additional Solicitor General relied on the Apex Court decision in Kunhayammed and Others v. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.) = (2000) 6 SCC 359. He emphasized Paragraph No. 22 of the said judgment to contend that though a civil appeal is dismissed by a non-speaking order, it would tantamount to a merger of the order of the first respondent with that of the Supreme Court. 20. In that case, the Supreme Court considered the doctrine of merger with reference to the orders passed by the Supreme Court at various stages of S.L.P. such as post-leave stage, dismissal at the stage of special leave without reason, dismissal of S.L.P. by speaking order, dismissal of appeals after leave being granted by a speaking order or without furnishing any reason. In that judgment, the situation of the present nature has not been considered, apparently because that a civil appeal dismissed as withdrawn would otherwise amount to relegating the parties to the position prior to the filing of the appeal and by such an order, the order appealed against was neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order. The last of the above observation was very much relied on by the learned Additional Solicitor General to buttress his case. I am of the view that that sentence has to be considered in conjunction with the earlier sentence and not in isolation. From the exposition of law made by the Supreme Court in the above judgment, it is clear that the order allowing the petitioner to withdraw the appeal cannot be compared to an order passed by the Supreme Court either modifying or confirming or setting aside the order of the first respondent so as to plead merger. 23. Learned Additional Solicitor General contended that on the order of dismissing the civil appeal as withdrawn, the petitioner was entitled only to file a R.O.M. before the first respondent. This contention, I am of the view, goes against the stand of merger taken by the learned Additional Solicitor General, in the absence of such direction given by the Supreme Court. When the petitioner was entitled to file R.O.M. on the civil appeal being dismissed as withdrawn, the question of merger does not arise at all. When the remedy of R.O.M. is available, the other remedies are equally available to the petitioner. The order of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner to file the present writ petition. That fact was not at all disputed by the respondents. 26. Any order that might be passed in the R.O.M. could very well be put in issue under Article 226 of the Constitution of India. The existence of adequate or suitable alternative remedy available to the petitioner could be regarded as a factor, and could be considered while entertaining an application under Article 226 of the Constitution of India, for exercising the jurisdiction to issue writ. But the existence of such remedy would not impinge upon the jurisdiction of the High Court to deal with the matter itself, if it is in a position to do so on the basis of the averments made in the affidavit filed. Even when an alternative remedy has been availed by a party and not pursued, and rather withdrawn, the party could prosecute proceedings under Article 226 for the same relief or for rather a larger relief. The petitioner had not suppressed any material, but explained the circumstance in which the petitioner was forced to approach this Court by invoking the jurisdiction under Article 226. Useful reference can be had to the judgment of the Supreme Court in the case of S.J.S. Busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1-1997 was projected as Circular and the subsequent circular dated 10-1-1997 giving out the formula for quantifying the Modvat credit and other modalities for reversal of such credit has been projected as Scheme before the Supreme Court, which is evident from paragraph No. 4 of the Rule. As number of different and distinguishing factors are there in the present case, which are being discussed below in this order, the case of Bharati Telecom cannot be regarded as ratio decidendi to the case on hand (See Haryana Financial Corporation case JT 2002 (1) SC 482 and Constitution Bench Judgment in the case of Padmeswararao 2002 AIR SCW 1156). 28. On the facts of the present case, the first show cause notice dated 24-7-1995 has been issued with reference to 9 VABALs. The second show cause notice dated 25-9-1995 was issued with reference to 5 VABALs. In the show cause notices details as to each VABALs were mentioned in column 1 of the annexure. The goods imported against each VABALs under Bills of entry were mentioned in column 2. Likewise, the other particulars such as description of goods imported, value in rupees, rates of duty and duty payable were given in separate column. In respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 81,46,490/- that the petitioner has also debited a sum of Rs. 19,22,371/- as interest on the above credit. Out of the above amount of Rs. 19,22,371/-, Rs. 18,27,721/- was reversed on 31-1-1997 and the balance on 6-2-1997. On further verification, yet another certificate dated 3-9-1997 was issued by the Assistant Commissioner of Central Excise, Pondicherry to the effect that the petitioner had reversed Modvat credit of Rs. 83,01,114/- and interest of Rs. 20,80,304/-. The details of which have been given in eight serial numbers. As seen from the details, except the reversal of a sum of Rs. 1,49,266/- and a sum of Rs. 1,54,624/- shown as S. Nos. 5 and 6, all other reversals were made prior to the crucial date 31-1-1997. In respect of reversal of interest on Modvat credit, the particulars given by the Assistant Commissioner of Central Excise in the very same letter reveals that the interest for a sum of Rs. 18,27,721/- had been reversed on 31-1-1997 i.e., on the crucial date, but three other amounts for a sum of Rs. 8,793/-, Rs. 85,857/-, and Rs. 1,57,933/- were reversed on 19-8-1997 respectively, which apparently after the cut-off date. 31. The Additional Solicitor General conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and payment of interest as contemplated in condition (a) is completed by 31-1-1997 and thereupon no demand of Customs duty leviable on goods imported against the Value Based Advance Licence in question shall be payable. (c) The proposed relaxation will, however, not cover such merchant-exporters who had not declared the details of their supporting manufacturers and consequently, in whose cases the reversal of Modvat is not practicable. (d) In all cases where Modvat credit is reversed and the amount of interest is also paid before 31-1-1997, no penal action or prosecution proceedings shall be initiated against the Value Based Advance Licence holder. (e) The Value Based Advance Licence holders who fail to reverse the Modvat credit in full before 31st January, 1997 shall not be exempt from penal proceedings under the law." D/P/F/NO. 605/140/95- DBK DATED 3-1-1997." 33. It is clear from the above clauses that clause (a) provides for the conditions to be complied with for becoming eligible for the benefit under the Scheme. The conditions to be complied with are that (1) reversal of Modvat credit incorrectly availed by the exporter and (2) Interest at 20% on the amount of Modvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as giving meaning as "payment in cash". Black's Law Dictionary (V Edition) defines the word "deposit" as follows : "to commit to custody or to lay down, to place, to put, to let fall (as sediment), to lodge for safekeeping, or as a pledge to entrust to the care of another." 37. It is well established and well recognised principle of interpretation that one should not concentrate too much on one word and pay too little attention to other words. No word in any provision can be construed in isolation. Every word must be looked at generally and in the context in which it is used and gather the mens or sententia legis of the Legislation. Where the words are clear and there is no obscurity or ambiguity and the intention of Scheme is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or altering the provision as the Court is only interpreting the Scheme, but not framing the Scheme. When the language is clear, the intention of Scheme has to be gathered from the language used and while doing so, what has been said and what has not been said has to be noted. The subordinate or subsidiary clause would yield to the substantive clause, [vide M/s. Grasi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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