Karnataka High Court

M/S Deccan Charters Private ... vs The Principal Commissioner Of ... on 30 November, 2021

Bench: S.R.Krishna Kumar

                              1




     IN THE HIGH COURT OF KARNATAKA, BENGALURU

      DATED THIS THE 30TH DAY OF NOVEMBER, 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

        WRIT PETITION No.17765 OF 2021 (T-CUS)
BETWEEN:

M/S DECCAN CHARTERS PRIVATE LIMITED
JAKKUR AERODROME, BELLARY ROAD
BANGALORE-560064
REP BY ITS CHIEF EXECUTIVE OFFICER,
SANJAY SAIGAL
SON OF SWAROOP SAIHGAL SHANTI
AGED 49 YEARS
                                             ...PETITIONER

(BY SRI G.SHIVADASS, SR. COUNSEL FOR
    SRI P.B.HARISH BHARADWAJ, ADVOCATE)

AND:

1.      THE PRINCIPAL COMMISSIONER OF CUSTOMS
        AIR CARGO COMPLEX (IMPORT)
        NEW CUSTOMS HOUSE, NEAR IGI AIRPORT
        NEW DELHI-110 037

2.      UNION OF INDIA
        THROUGH THE SECRETARY
        MINISTRY OF FINANCE
        (DEPARTMENT OF REVENUE)
        NO.137, NORTH BLOCK
        NEW DELHI-110 001

3.      CENTRAL BOARD OF INDIRECT
        TAXES AND CUSTOMS
        MINISTRY OF FINANCE
        DEPARTMENT OF REVENUE
        CENTRAL REVENUE BUILDING
        LP ESTATE, ITO, NEW DELHI-110 002.

                                        ...RESPONDENTS
(BY SRI JEEVAN J.NEERALGI, ADVOCATE FOR R1
    SRI MALHARA RAO, ADVOCATE FOR R2)
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     THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE LD.
RESPONDENT TO PERMIT THE PETITIONER TO DISMANTLE THE
AIRCRAFTS AND EXPORT THE SAME IN PARTS, IN FULFILMENT
OF NOTIFICATION NO.72/2017- CUSTOMS DATED AUGUST 16,
2017 (ENCLOSED AS ANNEXURE-E) BY CALCULATING 18
MONTHS AFTER EXCLUDING THE PERIOD FOR WHICH FORCE
MAJEURE CLAUSE HAS BEEN INVOKED AND ETC.

     THIS W.P. COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-


                              ORDER

In this petition, petitioner has sought for the following

reliefs:-

" (i) To issue writ of mandamus and/or any other appropriate writ(s) directing the Ld. Respondent to permit the petitioner to dismantle the aircrafts and export the same in parts, in fulfillment of Notification No.72/2017-Customs dated August 16, 2017 (enclosed as Annexure E) by calculating 18 months after excluding the period for which Force majeure clause has been invoked;

(ii) To issue writ of mandamus and/or any other appropriate writ(s) directing the Ld. Respondent to not demand any duty from the petitioner in respect of the subject aircrafts and grant exemption under Section 25 of the Customs Act, 1962;

(iii) To issue writ(s) and/or direction(s) in the nature of prohibition commanding the Respondents, their servants agents and/or subordinates from

resorting to any coercive measure during the pendency of the writ petition before this Hon'ble Court;

(iv) To issue order(s), direction(s), writ(s) or any other relief(s) as this Hon'ble Court deems fit and proper in the facts and circumstances of the case and in the interest of justice;

(v) To award cost of this petition; and

(vi) Pass any other order or give any other direction as this Hon'ble Court deems fit and appropriate in the circumstances of the case".

2. Heard learned senior counsel appearing for the

petitioner, learned counsel for the respondents and

perused the material on record.

3. In addition to reiterating the various contentions

urged in the petition and referring to the documents

produced by the petitioner, learned senior counsel for the

petitioner submits that the subject aircrafts were imported

by the petitioner in terms of the Notification dated

16.08.2017 issued under Section 25 of the Customs Act,

1962 (for short 'the said Act of 1962'), whereunder certain

time lines were fixed for re-export of the subject aircrafts.

The appropriate duty payable along with applicable interest

in terms of the aforesaid Notification dated 16.08.2017 was

paid by the petitioner on 06.02.2020. Thereafter on

14.02.2020, the 1st respondent granted extension for the

Aircrafts to remain in India for a further period of three

months up to 01.06.2020. Thereafter, on account of the

Covid-19 pandemic, the Geological Survey of India vide

letter dated 15.06.2020 extended the time limit for

completion of the Project OGP Block-9 invoking the Force

Majeure clause up to 31.03.2021. Subsequently, on

09.07.2020 and 17.09.2020, the petitioner requested for

grant of ad hoc exemption from payment of customs duty

under Section 25(2) of the said Act of 1962.

3.1 Learned senior counsel invited my attention to the

letter dated 18.03.2021, under which the petitioner sought

for ad hoc exemption from payment of customs duty under

Section 25(2) of the said Act of 1962. By the impugned

letter dated 09.08.2021 vide Annexure-A, the 1st

respondent rejected the request of the petitioner for

exemption from payment of customs duty under Section

25(2) of the said Act of 1962 and denied grant of extension

of re-export period as directed under the Notification dated

16.08.2017. Aggrieved by the impugned communication

vide Annexure-A dated 09.08.2021, the petitioner is before

this Court by way of the present petition.

3.2 Alternatively, the petitioner has also sought for a

direction, directing the respondents to permit the petitioner

to dismantle the subject aircrafts and export the same in

parts, in fulfillment of the Notification dated 16.08.2017 vide

Annexure-E by calculating 18 months after excluding the

period from 22.03.2020 to 03.10.2021 during which, Force

majeure clause has been invoked.

3.3 In support of his submissions, learned senior

counsel for the petitioner has placed reliance on the various

orders and Notifications issued under the Disaster

Management Act as well as the orders of the Apex Court as

detailed hereunder:-

(i) Relevant Portion of Memorandum of Agreement between Geological Survey India and M/s. McPhar International Pvt.Ltd.,;

(ii) Section 25 of Customs Act - 'Power to grant exemption from duty';

(iii) Ad hoc Exemption Order No.4/2021 - Cus dated 03.05.2021;

(iv) Ad hoc Exemption Order No.5/2021 - Cus dated 31.05.2021;

(v) DGS Order No.7/2020 dated 29.03.2020;

(vi) DGS Order No.11/2020 dated 22.04.2020;

(vii) Notification No. F.18/4/2020 PPD dated 19.02.2020;

(viii) Office Memorandum No. 283/18/2020 - GRID SOLAR dated 20.03.2020;

(ix) Press Release dated 27.03.2020 issued by Ministry of Railways;

(x) Office Memorandum No. F-18/4/2020-PPD dated 13.05.2020 by Department of Expenditure;

(xi) No. PD - 14033 /4 /2020-PD VII dated 21.04.2020 by Ministry of Shipping;

(xii) Office Memorandum No. COVID -

19/RoadMap/JS(H)/2020 dated 18.05.2020 by Ministry of Roads Transport and Highways;

(xiii) Order No. 40-3/2020 - DM-I(A) dated 24.03.2020 by Ministry of Home Affairs;

(xiv) Relevant Portion of the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act,2020;

(xv) Notification G.S.R. 601(E) dated 30.09.2020; (xvi) Supreme Court Order dated 23.03.2020 in Suo Moto Writ Petition(Civil) No.3/2020;

(xvii) Supreme Court Order dated 08.03.2021 in Suo Moto Writ Petition(Civil) No.3/2020;

(xviii) Supreme Court Order dated 27.04.2021 in Miscellaneous Application No.665/2021 in Suo Moto Writ Petition(Civil) No.3/2020;

(xix) Supreme Court Order dated 23.09.2021 in Miscellaneous Application No.665/2021 in Suo Moto Writ Petition(Civil) No.3/2020;

(xx) Shri Krishan Pharmaceuticals Ltd. CCE (Appeals),Hyderabad - 2004 (178) E.L.T. 1141 (AP.);

(xxi) Indian Oil Corporation Limited & Ors. V. Shashi Prabha Shukla & Ors. (2018) 12 SCC 85;

(xxii) Britto Timbers Pvt Ltd and ors. v. The Plant Protection Officer (E) - MANU/TN/3349/2021;

(xxiii) State of Uttar Pradesh petitioner(s) v. (In Re: Inhuman Condition at Quarantine Centres and for providing better treatment to corona positive Supreme Court Order dated 21.05.2021 passed in Petition for Special Leave to Appeal(C ) No. 7147/2021 (IA 63364/2021).

3.4 Reliance is also placed on the decision of the

Bombay High Court in the case of Kalmati Ramkrupal

Yadav vs. Chandrapur City Municipal Corporation -

2021(5) BomCR 422, in order to contend that under

identical circumstances, having regard to the

unprecedented circumstances created by Covid-19 crisis,

the time stipulated for issuance of Caste Validity Certificate

in the said case was excluded by the Bombay High Court

holding that the petitioner therein could not have in fact

been disqualified for non submission of the caste certificate

within the stipulated period of twelve months. It is therefore

submitted that in the event, this Court comes to the

conclusion that the petitioner was not entitled to exemption

under Section 25(2) of the said Act of 1962, the period from

22.03.2020 till 03.10.2021 deserves to be excluded for the

purpose of enabling the petitioner to comply with the

Notification dated 16.08.2017 .

4. Per contra, learned counsel for the respondents

submit that the Notification dated 16.08.2017 and the

timelines mentioned therein have to be strictly construed

and the question of either granting exemption from customs

duty or exclusion / extension of time would not arise. It is

therefore submitted that there is no merit in the petition and

the same is liable to be dismissed.

5. As rightly contended by the learned senior counsel

for the petitioner, a perusal of the aforesaid series of

continuous orders, Notifications etc., issued by the Central

Government, State Government as well as the Apex Court

will clearly indicate that on account of unprecedented crises

due to Covid-19 pandemic, the period between 22.03.2020

and 03.10.2021 has been constantly and continuously

excluded by the Central Government, State Government as

well as the Apex Court for all practical purpose. Further, in

the case of Kalmati Ramkrupal Yadav's case (supra),

while dealing with the statutory period of 12 months

prescribed for the petitioner therein to submit an application

to Caste Validity Certificate within a period of 12 months,

the Bombay High Court has come to the conclusion that the

petitioner was entitled to exclusion of time in the backdrop

of Covid-19 crisis and time deserves to be excluded for the

purpose of computation and quantifying the period of 12

months. In the said decision, the Bombay High Court has

held as under:-

" 23. The circumstances created by the COVID-19 crisis adversely affected the entire globe and human kind at large, thereby showing that it could not be said that the petitioner was faced with individual hardship. The scale of the crisis is unprecedented, due to which the highest Court of the land was required to issue hitherto unknown directions. Due to the challenge faced by the entire country on account of COVID-19 crisis, the Hon'ble Supreme Court took suo motu cognizance and initiated proceedings in Suo Motu Writ Petition (Civil) No. 3 of 2020. In the order dated 23/03/2020, passed in the said proceeding, the Hon'ble Supreme Court took note of the situation and the resultant

difficulties faced by the litigants across the country. To obviate such difficulties, the Hon'ble Supreme Court in the said order directed as follows:- "This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks."

24. It is contended on behalf of the respondent Corporation that the said directions given by the Hon'ble Supreme Court were limited to relief for litigants who intended to file suits/petitions/applications/appeals and other such proceedings for which periods of limitation are

prescribed under the general law of limitation or Special Laws. It was contended that the said direction and relief granted to litigants by the Hon'ble Supreme Court by exercising power under Article 142 read with Article 141 of the Constitution of India was not meant for persons like the petitioner herein. It was submitted that the mandatory requirement of Section 5B of the aforesaid Act, could not be diluted by such directions.

25. It is relevant that the Hon'ble Supreme Court in the above quoted order used the expression "all other proceedings". Considering the backdrop, in which the said order was passed, it can be said that proviso to Section 5B of the aforesaid Act provides a specific limitation of time period for submitting Caste Validity Certificate, which is a period of twelve months. As per the above quoted order of the Hon'ble Supreme Court, the period of limitation prescribed by Special Laws, both Central and State laws, stood extended w.e.f. 15/03/2020 till further orders by the Hon'ble Supreme Court. It is significant that in a subsequent order dated 10/07/2020 in the very same suo motu proceeding, the Hon'ble Supreme Court noted that parties had prayed for extension of time where the time to perform a particular act was to expire during the lock- down. In the backdrop of such prayer, the Hon'ble Supreme Court referred to the provisions of the Arbitration and Conciliation Act, 1996, as also, the provisions of the Commercial Courts Act, 2015, which fix specific time periods for doing certain acts and then granted relief of extension of time limits.

26. In the backdrop of the unprecedented crisis created by the lock-down due to the COVID-19 virus, the Hon'ble Supreme Court exercised power under Article 142 read with Article 141 of the Constitution of India to grant

such relief of extension of time. The said directions given by the Hon'ble Supreme Court would apply to various situations and in the peculiar facts and circumstances of the present case, to the case of the petitioner also.

27. This aspect was not taken into consideration by the respondent Corporation at all while passing the impugned order dated 23/06/2020. The Caste Validity Certificate was admittedly issued on 08/07/2020 in favour of the petitioner and therefore, if the directions given by the Hon'ble supreme Court from time to time for extension of time to perform certain acts are applied to the facts of the present case, it becomes evident that the respondent Corporation could not have held immediately upon expiry of the period of twelve months that the election of the petitioner stood terminated with retrospective effect and that she stood disqualified as Member of the respondent Corporation.

28. There is another angle from which the peculiar facts and circumstances of the present case can be viewed. The principle of impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of law is excused, is recognized in jurisprudence. This principle has been referred to in a recent judgment of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal MANU/SC/0521/2020 : (2020) 7 SCC 1, wherein it has been held that the mandatory requirement of law is to be excused when it is demonstrated that despite all efforts made by the party required to satisfy the mandatory requirement, due to no fault of such person, the requirement could not be satisfied. In the said case, the party had made all efforts for grant of requisite certificate under the provisions of the

Evidence Act, but the concerned authority, which was supposed to issue the certificate failed to issue the certificate to the party.

29. In the present case, it can not be said that the petitioner did not make efforts for issuance of Caste Validity Certificate before the Caste Scrutiny Committee, as is evident from the details of the proceeding provided by the office of the Committee. Despite efforts made by the petitioner, the proceedings initiated before the Caste Scrutiny Committee could not be terminated before the expiry of the mandatory period of twelve months under proviso to Section 5B of the said Act. The Caste Scrutiny Committee could not hold meetings and it could not proceed with the application of the petitioner due to imposition of lock-down on 22/03/2020. But for the intervening circumstance of COVID-19 crisis and consequent lock-down, the Caste Scrutiny Committee would have been able to complete the proceeding regarding the Caste Validity Certificate of the petitioner.

30. The Caste Scrutiny Committee was also not to blame for such a predicament because imposition of lock- down resulted in a situation where the Caste Scrutiny Committee could not hold meetings and even the parties before the Committee were not permitted to physically enter the office of the Committee. It can be said that the performance of the act by the petitioner, mandatorily required under the provisions of the aforesaid Act, could not be completed due to factors beyond the control of the petitioner and necessarily due to a factor like the act of God. In the present case it could be said to be the act of the dreaded virus. The maxim impotentia excusat legem is intimately connected with another maxim

of law lex non cogit ad impossibilia i.e. the law does not demand the impossible.

31 . Both these maxims have been referred to and relied upon by the Hon'ble Supreme Court in the aforesaid judgment of Arjun Paditrao Khotkar vs. Kailash Kushanrao Gurantyal and others (supra), while holding in favour of the respondent in the context of excusing the said respondents from satisfying the mandatory requirement of the relevant provision of the Evidence Act.

32. If the said position of law is applied to the peculiar facts of the present case created by the lock-down imposed due to the COVID-19 crisis, it can be said that the aforesaid legal maxims apply and that there is substance in the contention raised on behalf of the petitioner that the impugned order deserves to be set aside.

33. In view of the above, the Writ Petition is allowed. The impugned order dated 23/06/2020 is set aside. It is held that the petitioner cannot be said to have incurred disqualification under Section 5B of the aforesaid Act, only because she could not submit the Caste Validity Certificate within the stipulated period of twelve months. It is held that she is entitled to protection of the directions issued from time to time by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020, in the backdrop of the COVID-19 crisis".

6. The decision of the Bombay High Court though

rendered in the context of submission of the Caste Validity

Certificate has taken into account the exclusion of the

period stipulated for performance of any act, deed or thing

on account of Covid-19 pandemic. Under these

circumstances, I am of the considered opinion that the

aforesaid various Orders, Notifications, Circulars etc.,

issued by the Central Government and State Government

as well as the orders of the Apex Court in Suo Motu Writ

Petition (Civil) No.3/2020 are squarely applicable to the

facts of the instant case and the petitioner herein would be

entitled to exclusion of time for the aforesaid period from