Bombay High Court
Dgm Textiles vs Union Of India on 2 September, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
2024:BHC-OS:13582
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
PRACHI
by PRACHI WRIT PETITION (L) NO.8095 OF 2024
PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2024.09.04
DGM Textiles
11:48:08 +0530 ....Petitioner
V/s.
Union of India & Ors. ...Respondents
----
Mr. Dhiraj D. Chavan for petitioner.
Mr. Siddharth Chandrashekhar for respondents.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATE : 2nd SEPTEMBER 2024
P.C. :
1 This is a case where unfortunately a litigant has come to Court
with not just unclean hands but absolutely dirtied and muddied hands. This
petitioner, we find has been lying throughout before the authorities and as
also before this Court by suppressing material facts.
2 Petitioner is seeking the following reliefs : -
"A. Hon'ble Court be pleased to issue: (a) Writ of Certiorari thereby
quashing the Order No. 674/2023-CUS(WZ)/ASRA/Mumbai, dated
18.09.2023 issued by the Respondent No.2;
B. Hon'b1e Court be pleased to issue Writ of Certiorari thereby quashing the
Order in Appeal No: MUM-CUSTM-AXP-APP-624/2020-2021 dated
24.12.2020 issued by Respondent No.3;
C. Hon'ble Court be pleased to issue Writ of Mandamus thereby directing
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the Respondent No. 2 to conduct fresh hearing on merits of Revision
Application against Appeal No: MUM-CUSTM-AXP-APP-624/2020-2021 dated
24.12.2020 passed by Respondent No.3."
3 Petitioner is an exporter who had exported goods under
drawback scheme as provided under Section 75 of the Customs Act, 1962
("the said Act"). He claimed drawback for the exports made under various
Shipping Bills between 1st April 2004 to 31 st December 2008. A sum of
Rs.17,58,772/- was sanctioned as drawback under the Customs, Central
Excise Duty and Service Tax Drawback Rules, 1995.
4 It is petitioner's case that it never received a Demand-cum-
Notice dated 15th May 2010 wherein it was alleged that petitioner had not
realized the foreign exchange (sale/export proceeds) in respect of the
goods exported based on which the drawback was sanctioned. As per the
notice, petitioner was required to show cause as to why the drawback
amount availed of by petitioner be not recovered with applicable interest
from petitioner.
5 It is alleged in the petition that respondent no.4 passed an
order dated 3rd January 2013 ex parte without calling and perusing/
considering the relevant documents/facts/records. It is averred that
petitioner never received Order-in-Original dated 3 rd January 2013 and
petitioner came to know regarding Order-in-Original dated 3 rd January
2013 only in 2019 when petitioner's shipments for export were withheld
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by Customs Authorities due to an Import Export Code (IEC) alert having
been fed in the EDI system and whereby petitioner's bank accounts were
also freezed upon the instructions from the Tax Recovery Cell (Export)
Section of the Customs Department.
6 It is averred in the petition that petitioner was shocked to know
that the Order-in-Original has been passed by the Adjudicating Authority-
Respondent no.4 against it in an ex parte manner. Petitioner therefore, filed
an appeal under Section 128A of the Act before respondent no.3. The said
appeal came to be dismissed vide order dated 24 th December 2020. It is
stated that the order came to be dismissed on the ground of limitation
without appreciating the merit of the case. Against the said order, petitioner
preferred a revision application before respondent no.2 which also came to
be dismissed by an order dated 18 th September 2023. All these three orders
are impugned in this petition.
7 In all these three orders, it has been emphasized that petitioner
has been lying and the stand taken by petitioner consistently before the
three authorities, i.e., respondent no.2, respondent no.3 and respondent
no.4, and even before us, is that petitioner had no idea whatsoever of any
adjudication proceedings. In all the three orders, there is reference to a
letter dated 19th November 2012 from petitioner, in response to a personal
hearing intimation dated 19th October 2012, by which petitioner had stated
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that the relevant documents would be submitted within one month and
petitioner failed to do so.
8 We find that there is not even an attempt to explain the
situation in this petition. There is no reference at all to this communication
dated 19th November 2012 by petitioner or to the notice of personal hearing
dated 19th October 2012. If petitioner had not addressed the said letter
dated 19th November 2012, we are certain that would have been so stated
in the petition. In the circumstances, we are satisfied that the attempt of
petitioner is not only to hide truth from the Authorities but also to obtain
orders from this Court by suppressing material facts.
9 In these circumstances, we are not inclined to exercise our
jurisdiction under Article 226 of the Constitution of India.
10 It is settled law that any party approaching this Court should
come with clean hands and as noted hereinabove, petitioner's hands are
absolutely muddied. Mr. Chandrashekhar is justified in saying that this is a
fit case that the Court should not only dismiss the petition but impose
substantial cost so that nobody would try to take a chance and then obtain
orders from the Court by suppressing material facts.
11 It will be apposite to reproduce paragraph 27 of the Judgment
of this Court in KML Estates Pvt. Ltd. Vs. Zarine D'Monte & Ors. 1 as
1 2023 SCC OnLine Bom 558
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under :-
"27. In our view, this appeal has to be allowed. In our opinion, the said
respondents, who are plaintiffs in the suit, should have come to the Court
with clean hands. The observations of the Hon'ble Supreme Court in S.P.
Chengalvaraya Naidu Vs. Jagannath (Dead) by LRS. (supra), that was
relied upon by Mr. Dada, are relevant in this context. The Court observed :
"The Courts of law are meant for imparting justice between the
parties. One who comes to the Court must come with clean
hands ....... We have no hesitation to say that a person whose
case is based on falsehood, has no right to approach the Court.
He can be summarily thrown out at any stage of the litigation."
12 Therefore, petition dismissed with cost in the sum of Rs. 5
lakhs that petitioner shall pay to Commissioner of Customs, Mumbai. If this
amount is not paid within two weeks and compliance affidavit filed,
respondents may recover this amount with @18% p.a. interest thereon
from the date hereof together with the amount recoverable under the
order-in-original passed on 3rd January 2013.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
