Delhi High Court
M/S Aar Bee Exports vs Union Of India And Ors on 30 August, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th August, 2011
+ W.P.(C) 6345/2011 & CM.No.12750/2011 (for stay)
M/S AAR BEE EXPORTS ..... Petitioner
Through: Mr. Priyadarshi Manish and Ms.
Anjali Manish, Advs.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Ms. Sonia Mathur & Mr. M.P. Singh,
Advs. for UOI.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 4th December, 2007 of the
Additional Director General of Foreign Trade dismissing the appeal
preferred by the petitioner.
2. This writ petition has been preferred after nearly four years of the
order. The petitioner has in para 47 of the petition referred to the order
dated 4th December, 2007; thereafter in para 48, without stating that the
order was not received by the petitioner, it is stated that on 7 th January, 2008,
the petitioner had requested the Appellate Authority to send all
communications at the address of the Advocate; a perusal of the letter dated
7th January, 2008 does not show that the petitioner / its Advocate had by the
said letter asked for the order to be sent at the address given therein; rather it
is the case of the petitioner in paras 45 & 46 of the petition that hearing was
granted by the Appellate Authority on 4th July, 2007, 27th August, 2007 and
15th October, 2007. The letter dated 7th January, 2008 even if believed to
have been sent, appears to have been sent merely to raise a ground
subsequently. The petitioner thereafter claims to have remained quiet till
23rd March, 2011, when it appears that proceedings for recovery were
initiated. Though it is claimed that the order dated 4 th December, 2007 filed
along with the writ petition was handed over thereafter to the petitioner but
there is no proof of the same. Ordinarily, had the petitioner not received the
order dated 4th December, 2007, a letter enquiring about the fate of the
appeal pursuant to the hearings aforesaid would have been written and / or a
formal application for supplying the copy of the order would have been
made. The explanation rendered for long delay in preferring the petition is
thus found to be false. The petition is thus liable to be dismissed on
principles of laches, acquiescence and waiver.
3. However, to satisfy the judicial conscience, the matter has also been
examined on merits.
4. The Adjudicating Authority had vide order dated 8 th December, 2001
imposed fiscal penalty of `80,00,000/- on the petitioner for non fulfillment
of the export obligation after availing of benefits in import duty; the
petitioner, aggrieved therefrom preferred an appeal; however, the said appeal
was dismissed by the Appellate Authority on 20th July, 2005 for default in
appearance of the petitioner and also for the reason of the petitioner having
failed to make the pre-deposit.
5. Aggrieved therefrom, the petitioner preferred W.P.(C) No.2413/2006
in this Court and which was disposed of vide order dated 21 st February,
2006; even though this court found that the petitioner had received more
than sufficient indulgence but in the interest of justice, subject to the
petitioner depositing a sum of `1,00,000/- with the Prime Minister's Relief
Fund, the Appellate Authority was directed to grant a further opportunity to
the petitioner.
6. The Appellate Authority thereafter vide order dated 5th May, 2006
remanded the matter to the Adjudicating Authority. The Adjudicating
Authority on remand and after giving opportunity of hearing to the
petitioner, recorded that the petitioner did not regularize the shortfall in
exports as per the Export-Import Policy and vide order dated 23rd February,
2007 imposed fiscal penalty of `66,00,000/- on the petitioner. The petitioner
again preferred an appeal against the order of the Adjudicating Authority
and which appeal has been dismissed vide order dated 4 th December, 2007
impugned in this petition.
7. The Appellate Authority has in the order dated 4th December, 2007
noted that the petitioner inspite of being required in law to make a pre-
deposit had failed to make a pre-deposit and thus dismissed the appeal. It has
further been held that the petitioner instead of regularizing the default had
been buying time and had not been able to make out any case whatsoever.
8. The counsel for the petitioner has offered that the petitioner is willing
to pay the differential duty of `15,00,000/- in three equal monthly
installments.
9. The petitioner has for the last nearly ten years avoided the penalty
imposed on him. If the petitioner was aggrieved from the requirement of
pre-deposit, the petitioner ought to have taken appropriate remedies
thereagainst immediately after preferring the appeal in the year 2007. The
entire conduct of the petitioner shows that the petitioner has been evading
the duty due from him and has filed this petition only upon being threatened
with recovery. However, an opportunity has been given to the petitioner to
deposit `30,00,000/- in this court for the case to be considered. The counsel
for the petitioner is not willing for the same.
10. In the circumstances aforesaid, no error is found in the order of the
Appellate Authority of rejecting the appeal for the reason of the petitioner
having not made the pre-deposit.
11. I may notice that the counsel for the respondents appearing on
advance notice has argued that besides the aspect of delay, the petition is
also not maintainable for the reason of alternative remedies of appeal being
available and which have not been availed.
12. There is no merit in the petition. The same is dismissed. No order as
to costs.
CM No.12751/2011 (u/S 151 CPC for exemption)
Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW
(JUDGE)
AUGUST 30, 2011
'gsr'
