Bombay High Court
Shah Nanji Nagsi Exports Pvt Ltd vs Joint Directorate General Of Foreign ... on 22 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:3484-DB 15-IA-559-2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 559 of 2024
IN
WRIT PETITION NO. 4838 OF 2016
Shah Nanji Nagsi Exports Pvt. Ltd. ... Applicant
In the matter of
Shah Nanji Nagsi Exports Pvt. Ltd. . . . Petitioner
Versus
Joint Directorate General of foreign Trade & Ors. ...Respondents
_____________________
Mr. Amit Khanna & Ms. Samiksha Parekh i/b Dewani Associates, for
Applicant.
Mr. Rajshekhar Govilkar, Sr. Advocate a/w Mr. S. M. Bhardwaj, for
Respondents.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 22 JANUARY, 2024
_______________________
P.C.
1. Writ Petition No.4838 of 2016 as filed by the petitioner was disposed of
by judgment and order dated 21 May 2021 passed by a coordinate Bench of
this Court in terms of following observations and order:
"41.Since the order-in-original dated 14.02.2014 is interfered with,
the order-in-appeal dated 24.07.2015 and the order in review dated
04.11.2015 cannot survive. In so far encashment of bank guarantee
furnished by the petitioner is concerned as well as the claim for
refund of excise duty paid, needless to say those would be subject to
such decision that may be taken by respondent No.1 on remand.
42. Since we have decided as above, it is not necessary to delve into
the other ground(s) urged by the petitionere.
43. Consequently and in the light of the above, impugned orders
dated 14.02.2014, 24.07.2015 and 04.11.2015 are hereby set aside
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Kiran Kawre
15-IA-559-2024.DOC
and quashed. Matter is remanded back to respondent No.1 for a
fresh decision in accordance with law after giving due opportunity
of hearing to the petitioner and having regard to the discussions
made above. Let such decision be taken by respondent No.1 within
a period of three months from the date of receipt of a copy of this
judgment and order."
2. It appears from the record that on the said writ petition an interim order
was passed on 17 June 2016 whereby without prejudice to the rights and
contentions of both the parties as a condition for an ad-interim stay the
petitioner were directed to furnish security in the form of a bank guarantee of a
nationalized bank to cover the demand and which shall be to the satisfaction of
the Prothonotary and Senior Master of this Court.
3. The interim order had continued to operate and as noticed, was subject
to the orders which would be passed on remand as directed by the Court and in
the final orders passed and as noted by us above. As per final orders of the
Court on the Writ Petition (surpa), on remand the proceedings stand disposed
of by the Customs Excise & Service Tax Appellate Tribunal vide judgment and
order dated 25 January 2023, wherein it was held that the orders impugned
therein which held that imports were made by the petitioner in violation of the
conditions of the import licence, could not be sustained and were accordingly
set aside.
4. In the present application, it is the case of the petitioner that the
petitioner has also received the refund. In these circumstances, the petitioner
has filed the present application praying that appropriate directions be issued to
release and hand over the bank guarantee dated 27 June 2016 to the
petitioner / applicant as the proceedings itself has come to an end.
5. On 15 January 2024, to enable the learned counsel for the respondents
to take instructions, we had adjourned the proceedings for today. It is informed
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15-IA-559-2024.DOC
to us that instructions could not be received. In these circumstances, we are of
the opinion that the contentions as urged on behalf of the petitioner in the
interim application are not sought to be disputed, which are for a consequential
relief that the bank guarantee as deposited in this Court, now be released to the
petitioner.
6. It appears to be quite clear that the petitioner has now succeeded on
remand and the orders which were passed by this Court on the writ petition
were clear that in so far as encashment of bank guarantee furnished by the
petitioner was concerned, as well as the claim for refund of excise duty paid,
would be subject to such decision that has been taken by respondents on
remand. The petitioner having succeeded before the Tribunal no useful
purpose would be achieved in retaining the bank guarantee, further there was
no application at any point time on behalf of the respondent for encashment
of the bank guarantees in such circumstances.
7. In the light of the above discussion, the prayer as made in the interim
application are required to be granted. It is accordingly granted in terms of
prayer clause (a) which reads thus:
"(a) Issue appropriate order or direction to release and hand over the
Bank Guarantee dated 27/06/2016 (Exhibit-B) to the
Applicant/Petitioner in peculiar facts & circumstances of the case;"
8. The registry to do the needful within a one week from a copy of this
order being presented before the appropriate officer of the registry.
9. Disposed of in the above terms. No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
22 January, 2024
Kiran Kawre
