Bombay High Court
Ncc Limited vs The Union Of India And Ors on 27 February, 2017
Bench: S.C. Dharmadhikari
suresh 23-WP-5679.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5679 OF 2016
NCC Limited
(formerly Nagarjuna Construction
Company Limited)
A company incorporated and registered
under the provisions of the Companies
Act, 1956 having its office at NCC
House, Madhapur, Hyderabad-500 081. .... Petitioners
- Versus -
1. The Union of India
through the Secretary,
Ministry of Commerce,
Udyog Bhavan,
New Delhi-110 107.
2. The Director General of Foreign Trade,
Ministry of Commerce & Industry,
Department of Commerce, having
his office at Directorate of Foreign
Trade, Udyog Bhavan,
New Delhi 110 107.
3. The Additional Director General of
Foreign Trade, Nishtha Bhavan,
New Marine Lines, Churchgate,
Mumbai-400 020.
4. The Zonal Jt. Director General of
Foreign Trade, New C.G.O. Building,
New Marine Lines, Churchgate,
Mumbai-400 020.
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suresh 23-WP-5679.2016.doc
5. The Deputy Director General of Foreign
Trade, 2nd Floor, Nishtha Bhavan,
New Marine Lines, Churchgate,
Mumbai-400 020. .... Respondents
Mr. Prakash Shah with Mr. Jas Sanghavi & Mr. Prasad
Paranjpe i/by M/s. PDS Legal for the Petitioners.
Mr. Avinash J. Rana, Senior Counsel with Mr. Deepak
Thakkar & Mr. Dushyant Kumar for the Respondents.
CORAM: S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
DATE : FEBRUARY 27, 2017
ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.)
:
1. Rule. The respondents waive service. By consent,
rule is made returnable forthwith and the petition is taken up for
hearing and final disposal.
2. This writ petition under Article 226 of the
Constitution of India seeks the following reliefs:-
"(A) Issue a Writ of Mandamus or a writ in the
nature of Mandamus or any other appropriate writ,
order or direction directing the Respondents to
forthwith:
(i) cancel and/or withdraw the impugned Show
suresh 23-WP-5679.2016.doc
Cause Notices dated 06.06.2012, 09.08.2012,
04.03.2016 and 11.10.2012 (Exhibit F1-F5)
(ii) cancel and/or withdraw the impugned Demand
Letters dated 26.07.2011, 04.08.2011, 08.08.2011
and 24.08.2011 (Exhibit E1-E4)
(iii) Refund the sum of Rs.13,24,804/- wrongly
recovered from the Petitioners
(B) Issue a Writ of Certiorari or a writ in the
nature of certiorari or any other appropriate writ,
order or direction calling for the papers pertaining to
the Petitioners' case and after examining the legality
and validity thereof, to quash and set aside the
impugned:
(i) Show Cause Notices dated 06.06.2012,
09.08.2012, 04.03.2016 and 11.10.2012 (Exhibit
F1-F5)
(ii) Demand Letters dated 26.07.2011, 04.08.2011,
08.08.2011 and 24.08.2011 (Exhibit E1-E4)
(C) To declare that:
(i) the impugned decision taken by the Policy
Interpretation Committee in its Meeting No.10/AM-
11 held on 15.03.2011 is ultra vires, null and void
and of no effect,
(ii) the Petitioners are entitle to the deemed export
benefit in respect of the projects undertaken by them
and referred to above,"
3. The parties do not seriously dispute that the case at
hand is similar to the one dealt with by this Court in Writ
suresh 23-WP-5679.2016.doc
Petition Nos.6846 with 8288 of 2010 {Patel Engineering Ltd.
Vs. Union of India}, decided on 21-7-2014. The Judgment and
Order in this case is reported in 2014 (309) E.L.T. 469 (Bom.).
4. It is contended that the show cause notice dated
9-8-2012 seeks from the petitioners an amount or proposes to
recover a sum styled as refund in view of the petitioners' name
being included in the "Denied Entity List". Though the
petitioners have refunded the drawback amount sought to be
recovered under this show cause notice vide their letter dated
12-9-2014, they have clarified that the same is under protest.
5. Thereafter, the petitioners have challenged this
action by pointing out that the denial of the deemed export
benefit to the petitioners for their certain projects and the
impugned show cause notices/letters seeking to recover the
drawback already granted are ex facie without jurisdiction,
illegal and void. Though Mr. Rana, learned Senior Counsel
appearing on behalf of the respondents, contended that this writ
petition is not maintainable but without prejudice he also
suresh 23-WP-5679.2016.doc
contended that on merits the Revenue's stand, as reflected in the
show cause notices/letters which are impugned in the writ
petition, is correct both on facts and law. After having invited his
attention to the Division Bench Judgment in Patel Engineering
(supra), he states that the Revenue has challenged this
Judgment and Order in the higher Court. The proceedings are
pending before the Hon'ble Supreme Court of India. Thus, both
on the point of maintainability as also on merits the stand of the
Revenue though negatived by the Division Bench, Mr. Rana
stands by the same.
6. After having heard Mr. Shah and Mr. Rana at some
length, we are of the opinion that the issue raised in this petition
is fully covered by the Division Bench Judgment of this Court in
the case of Patel Engineering. Though the Revenue would
submit that it has approached the Hon'ble Supreme Court of
India challenging the same, nothing has been pointed out which
would indicate that either the Judgment is quashed or set aside
or no effect can be given to it in future cases. In such
circumstances, we are bound by our Judgment delivered in Patel
suresh 23-WP-5679.2016.doc
Engineering.
7. In view of the above, we allow this writ petition by
relying on our said Judgment. Rule is, therefore, made absolute
in terms of prayer clauses (a) and (b). There shall be no order as
to costs.
(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)
