Dismissed

M/S Laxmi Electronic Moulds & Precision v. Union of India

Karnataka HC23 Sept 2021WP/53511/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed under Articles 226 and 227 of the Constitution. The petitioner challenged orders regarding customs duty demands under the EPCG scheme. The Court held that statutory limitation bars relief and cannot be condoned even in writ jurisdiction, dismissing the petition due to time bar.

What did the court decide?

Writ petition dismissed; impugned orders of the Tribunal and Commissioner of Customs upheld.

M/S Laxmi Electronic Moulds & Precision Vs Union of… — Banking and Recovery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF SEPTEMBER, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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W.P.No.53511/2018 (CESTAT)

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BETWEEN :

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M/s LAXMI ELECTRONIC MOULDS & PRECISION ENGINEERING PRIVATE LTD., PLOT NO.81, EPIP, WHITEFIELD, BANGALORE-560066 REP BY C.K.A.KUMAR, MANAGING DIRECATOR ...PETITIONER

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(BY SRI RAVI RAGHAVAN, ADV.)

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AND :

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1 . UNION OF INDIA REP BY ITS UNDER SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110001

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2 . COMMISSIONER OF CUSTOMS (APPEALS) BMTC BUILDING, ABOVE BMTC BUS STAND, DOMLUR, BENGALURU-560071

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3 . DEPUTY COMMISSIONER OF CUSTOMS ICD, WHITEFIELD BANGALORE-560066 …RESPONDENTS

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(BY SMT.M.R.VANAJA, ADV. FOR R-1; SRI AMIT ANAND DESHPANDE, ADV. FOR R-2 & R-3.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE FINAL ORDER NO.20209/2015 DATED 27.01.2015 PASSED BY THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE IN APPEAL NO.C/27584/2013-DB AND THE ORDER IN APPEAL NO.278/2013 AND A.NO.82/2013 CUS[B]/658/2013 DATED 28.05.2013 PASSED BY THE R-2 ENCLOSED AT ANNEXURE-A1 AND A2.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, S. SUJATHA, J ., MADE THE FOLLOWING:

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O R D E R

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The petitioner has filed this writ petition assailing the Final Order No.20209/2015 dated 27.01.2015 passed by the Customs, Excise and Service Tax Appellate Tribunal, Bengaluru (‘Tribunal’ for short) in Appeal No.C/27584/2013-DB and Order-in-Appeal No.278/2013 and A.No.82/2013 CUS (B)/658/2013 dated 28.05.2013 passed by the respondent No.2 – Commissioner of Customs (Appeals), Bengaluru.

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The petitioner claims to be a manufacturer of plastic injection moulds and plastic molded components for providing single window solutions from concept to product for moulds, molding and assembly of

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components for manufacturing medical and nonmedical equipments. The petitioner was granted licences by the Joint Director General of Foreign Trade (JDGFT) under the Export Promotion of Capital Goods Scheme (EPCG Scheme) contained in Chapter 5 of the Foreign Trade Policy. The petitioner being a holder of the EPCG licence is entitled to import capital goods on payment of concessional rate of customs duty. The petitioner imported capital goods under EPCG scheme on payment of concessional rate of duty by claiming exemption in terms of Notification No.49/2000-Cus dated 27.04.2000. The respondent No.3 passed Orderin-Original No.401/2011 dated 14.09.2011 confirming the demand of Rs.63,00,321/- on the ground that the petitioner has failed to furnish documents in support of fulfillment of export obligation. It is the grievance of the petitioner that the said assessment order was not received by the petitioner - assessee said to have been dispatched by the department through RPAD. It was

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asserted that the copy of the Order-in-Original No.401/2011 dated 14.09.2011 was received by the assessee on 31.12.2012.

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Accordingly, the petitioner filed an appeal before the Commissioner of Customs (Appeals), Bengaluru on 29.01.2013 contending that they had obtained the Export Obligation Discharge Certificate from JDGFT on the capital goods. The Commissioner of Customs (Appeals) rejected the appeal on the ground that the said appeal was filed beyond the statutory period of limitation fixed under the statute. Aggrieved by the said order, the petitioner filed appeal before the Tribunal, which came to be dismissed upholding the Order-in-Appeal passed by the Commissioner (Appeals). Hence, this writ petition.

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Learned counsel for the petitioner – assessee

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submitted that originally CSTA No.7/2015 was filed by the petitioner challenging the impugned order of the

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Tribunal. However, the same came to be dismissed as withdrawn vide order dated 05.11.2018 reserving liberty to the petitioner to file a fresh writ petition. Hence, the petitioner has approached the Writ Court seeking for the reliefs as aforesaid. It was submitted that the postal acknowledgment does not disclose the O.C.No.4066/2011, under which the assessment order dated 14.09.2011 was dispatched as per the register maintained by the adjudicating authority. On the query made by the assessee, Post Master General has given a reply as per the letter dated 15.02.2013 that upon verifying the records maintained at their Office, it was found that there was no letter found addressed to the assessee with respect to reference O.C.No.4066 dated 16.09.2011 said to have been dispatched from ICD, Whitefield, Bengaluru for the period between September, 2011 to November, 2011. The learned Counsel for the assessee tried to draw succour from this reply stating that that no assessment order was served

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on the petitioner by the department on 16.09.2011 and

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it was only on 31.12.2012, it has come to their knowledge. As such, the appeal filed before the Appellate Authority on 29.01.2013 was well within time. However, the same was misconceived by the First Appellate Authority as well as the Tribunal in rejecting the appeal. Learned counsel further submitted that the reference No.56/13/01 found in the postal acknowledgment relates to many other documents wherein such documents were served on the petitioner like letters dated 03.11.2010, 24.07.2010. Thus no credence could be given to the No.56/13/01 found in the postal acknowledgment in the absence of O.C.No.4066/2011 found therein.

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Learned counsel for the respondents supporting the impugned orders submitted that O.C.No.4066/2011 was the inter-department reference made in the register and the same was not reflected in

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the postal acknowledgement. The postal

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acknowledgment certainly shows the No.56/13/01 which was duly served on the petitioner – company as could be seen from the round seal of the company along with the signature of the receiver. The time barred appeal is not maintainable.

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Both the learned counsel appearing for the parties have referred to the rulings of this Court as well as the Hon'ble Apex Court in support of their contentions.

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It is apt to refer to the decision of the Hon'ble Apex Court in the case of Assistant Commissioner (CT) LTU, Kakinada and others vs. M/s. Glaxo Smith Kline Consumer Health Care Limited [Civil Appeal No.2413/2020, (D.D. 06.05.2020)], whereby the Hon'ble Apex Court has held that the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party

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as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of the Hon'ble Apex Court in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited and Others reported in (2017) 5 SCC 42. It has been further observed that the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under the statue. That would render the legislative scheme and intention behind the stated provisions otiose.

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Following the said judgment, the coordinate bench of this Court in the case of M/s N.M.D.C. vs the Authority for Advance Ruling [W.P.No.1393/2021, D.D.26.02.2021)], has held that the law of limitation is found upon maxims such as “Interest Reipublicae Ut Sit Finis Litium” and “vigilantibus non dormientibus Jura

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subveniunt”, thereby confirming the order of the AAR rejecting the appeal on the ground of limitation, further holding that no reason was found to condone the delay keeping in view the statutory provisions.

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The Appellate Authority as well as the Tribunal being fact finding authorities have

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meticulously examined the material on record in arriving at a finding that non-mentioning of O.C.No.4066/2011 is not fatal for the delivery of the assessment order on the assessee. It is obvious that the Post Master General while giving the report has referred to the query made by the petitioner as regards the acknowledgment card with reference under O.C.No.4066/2011 as to whether that letter has been delivered. It is unrealistic to expect the said O.C.No.4066/2011, the reference number maintained in the register of the Assessing Officer, to be entered in the acknowledgment card as the reference number in the

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envelope and the postal acknowledgment. Any report given by the Post Master General with reference to O.C.No.4066/2011 would not assist the petitioner.

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The request made by the petitioner to decide

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the issue on merits dehorse the time barred appeal would run counter to the well established principles of law reiterated by the Hon'ble Apex Court in catena of decisions. No power was vested with the authorities as well as the Tribunal to condone the delay beyond the statutory period of limitation. More particularly, in the absence of sufficient cause shown by the petitioner as observed by the Hon'ble Apex Court in the case of M/s.

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Glaxo Smith Kline Consumer Health Care Limited.,

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supra, even exercising the writ jurisdiction, the Court cannot venture to condone the delay beyond the statutory period of limitation which has expired long back. It is well settled that the Court can come to the rescue of the person who is vigilant about his rights and

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not to a person who sleeps over the matter and rises from the slumber at his convenience. It cannot be expected that the petitioner would have awaited the assessment order from 14.09.2011 till 31.12.2012 when attempts were made before the Appellate Authority to consider the matter on merits as per the letters relied upon by the assessee itself.

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For the reasons aforesaid, we find no perversity or illegality in the orders impugned.

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Writ petition is devoid of merit, accordingly stands dismissed.

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SD/JUDGE

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SD/JUDGE

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PMR

M/S Laxmi Electronic Moulds & Precision v. Union of India

Case brief

What is this about?

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M/S Laxmi Electronic Moulds & Precision v. Union of India

Case brief

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