Remanded

M/S. Sona Processors (India) Ltd. v. Textile Committee, Government of India and 3 Ors.

Bombay HC22 Jul 2009WP/1144/2009

Case brief

AI extract

What is this about?

This writ petition challenged an order dismissing an appeal against textile cess demand notices. The High Court held the Tribunal erred in dismissing the appeal for maintainability without giving an opportunity to elect a single notice. Impugned order set aside with remand.

What did the court decide?

Impugned order set aside; matter remanded to Tribunal; 6-week stay on coercive steps.

M/S. Sona Processors (India) Ltd. Vs Textile… — Writ and Judicial Review | Bombay HC (2009)

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abs

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 1144 OF 2009

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M/s Sona Processors (India) Ltd. V/s

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Textile Committee, Government of India & Ors.

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.. Respondents

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Mr. Niranjan Pandit i/b Joy Legal Consultants for the Petitioner.

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Mr. A.M. Sethna i/b Mr. L.S. Shetty & Associates for respondent no.1.

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Mr. H.K. Vardhan with Mr. V.B. Tiwari for respondent no.4.

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CORAM : F.I. REBELLO & D.G. KARNIK, JJ.

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DATE : 22ND JULY 2009

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P.C. :

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Rule. Heard forthwith.

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In the instant case, the petitioner had preferred an appeal against three demand notices dated 19^th August 2004, 28^th July 2006 and 28^th July 2006 as reflected in the first para of the order of the Tribunal. One of the grounds in dismissing the appeal was that one appeal against three demand notices was not maintainable. The Tribunal also held that the demand notices are based on the returns filed by the appellant and, therefore, Rule 8 of the Textiles Committee (Appeal) Rules cannot be invoked in the case.

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An appeal lies to the Tribunal under section 5A(7) of the Textiles Committee Act. The limitation is as set out in section 5C(1) and the appeal has to be filed in the manner provided in section 5C(2) . Thus, the delay in preferring the appeal was not condoned by the Tribunal.

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Insofar as the finding by the Tribunal that the demand notices are based on returns is concerned, we find that the show cause notice dated 21^st November 2005 proceeded on the footing that the petitioner herein had not submitted returns and, therefore, the figures from A.G. (Audit), Rajasthan had been considered. The demand notice dated 28^th July 2006 also proceeded on the same footing. The order of the Tribunal to the extent it has held, at least insofar as the show cause notice referred to above was based on the returns, is clearly contrary to the record.

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Apart from the above, the defect in filing of the appeal would amount to irregularity and not illegality. Insofar as irregularity is concerned, an opportunity is required to be given to a party to cure the defect. In the instant case, even assuming that one appeal against three demand notices was not available, the Tribunal could have given opportunity to the petitioner herein to elect to maintain the appeal on at least one demand notice. That was not done and on the contrary, the entire appeal was dismissed.

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For the aforesaid reasons, the impugned order is set aside and the matter is remanded back to the Tribunal. It will be open to the petitioner herein before the Tribunal to elect to proceed with the appeal with respect to one demand notice and with respect to other two demand notices it may take such steps as available in law.

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A grievance is also made by the petitioner that the main challenge in its appeal to the demand notices was that it was not a manufacturer but was a processor and consequently no cess was payable. That question will be considered by the Tribunal on merits.

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For a period of 6 weeks from today, the respondents are directed not to take any coercive steps.

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Rule is made absolute accordingly with no order as to costs.

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(D.G. KARNIK, J.)

M/S. Sona Processors (India) Ltd. v. Textile Committee, Government of India and 3 Ors.

Case brief

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What did the court decide?

M/S. Sona Processors (India) Ltd. v. Textile Committee, Government of India and 3 Ors.

Case brief

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What did the court decide?

What the court decided

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