Mycon Construction Limited vs The Union Of India And Ors
2017 Latest Caselaw 75 Bom

 suresh                                          24-WP-5692.2016.doc

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION 
                      WRIT PETITION NO.5692 OF 2016


 Mycon Construction Limited,
 A company incorporated and registered
 under the provisions of the Companies
 Act, 1956 having its office at Industry 
 House, 45, Race Course Road,
 Bangalore - 560 001.                                ....  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.

 5. The Deputy Director General of Foreign

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  suresh                                                 24-WP-5692.2016.doc

     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                                                   24-WP-5692.2016.doc

           Cause Notice dated 29.06.2012

(ii) cancel and/or withdraw the impugned Demand Letter dated 31.05.2011

(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 Notice dated 29.06.2012

           (ii) Demand Letter dated 31.05.2011

           (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

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.).

suresh 24-WP-5692.2016.doc

4. It is contended that the show cause notice dated

29-6-2012 seeks from the petitioners an amount or proposes to

recover a sum styled as refund.

5. Thereafter, the petitioners have challenged this

action by pointing out that the denial of the deemed export

benefit to the petitioners for their projects and the impugned

show cause notice/letter 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 contended that on

merits the Revenue's stand, as reflected in the show cause notice

and the letter 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

suresh 24-WP-5692.2016.doc

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

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.)