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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.975 OF 1992
1. Maharashtra Fur Fabrics Ltd.
a Company incorporated under
the Companies Act,1956, and
having its registered office at
Podar Chambers, S.A.Brelvi Road,
Fort, Bombay - 400 001.
2.
Shri.M.S.Deokule of Bombay,
Indian Inhabitant, residing at
B-1/33, Technocrat Society Veer
Savarkar Marg, Prabhadevi,
Bombay - 400 025. ..Petitioners
Vs.
1. Union of India
2. The Chief Controller of Imports and Exports,
Government of India, Ministry of Commerce,
Udyog Bhavan, New Delhi,
3. The Joint Chief Controller of Imports
& Exports, Government of India, Ministry of
Commerce, having his office at New Central
Government Office Building, New Marine Lines,
Churchgate, Bombay - 400 020. ..Respondents
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Mr.H.Daruwalla a/w. Mr.Parag Sawant i/b. Crawford Baley & Co.for
petitioners.
Mr.M.I.Sethna, Senior Advocate with Mr.H.V.Mehta for respondents.
CORAM :- V.C.DAGA &
K.K.TATED,JJ.
JUDGMENT RESERVED ON : 24TH FEBRUARY, 2010
JUDGMENT DELIVERED ON : 12TH MARCH, 2010
JUDGMENT (PER : V.C.DAGA,J.)
1.
This petition is directed against the various orders passed from time to
time by the respondent incorporated at Exhibit-I,N,O and R1 to R7, whereby
and whereunder, the Ministry of Commerce, Government of India, New Delhi
denied cash incentive known as Cash Compensatory Support (“CCS” for short)
to the petitioners.
THE BACKGROUND FACTS :
2. The background facts lie in a narrow compass. First petitioner carries
on business of manufacturing High ‘Pile Fur Fabrics’. They have a factory in a
Government notified backward area outside Bombay. The second petitioner is
the shareholder of the first petitioner and a citizen of India.
3. The Government of India in order to save foreign exchange and
promote exports by indigenous manufacturers had introduced the Duty
Exemption Scheme in the Import Export Policy AM-1985-88. The said Scheme
was also introduced with some changes in the Import-Export Policies for the
year April/March,1988/91 and April/March-1990-93. Chapter XIX thereof
dealt with the aforesaid Duty Exemption Scheme. As per paragraph 219(1) of
the 1988-91 Policy and paragraph 229 of the 1990-93 respectively, laid down
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the objectives of the Duty Exemption Scheme, which was to make available to
the Registered Exports, the necessary inputs for export production at
International prices without payment of customs duty so as to make the
exports competitive in the International markets. The Scheme covered 3
categories of licenses; viz; (1) Advance Licenses (2) Intermediate Advance
Licenses (3) Special Imprest Licenses. The definitions of these licenses have
been set out in paragraphs 220 and 231 of the aforesaid two policies
respectively. The deemed exporter was defined in the policies as “supplies
made in India of Intermediate products to holders of Advance Licenses under
the Scheme for supply of intermediate products contained in Chapter XIX.
4.
In order to avail the benefits under the Duty Exemption Scheme, the
exporters and deemed exporters were required to register themselves with
appropriate registering authority, which in the case of 1st petitioner was the
“Synthetic and Rayon Textile Export Promotion Council”, Bombay. The first
petitioner was registered with the said Promotion Council as far back as 1986
as a registered Manufacturer.
5. By virtue of various Circulars issued from time to time prior to 30 th
March, 1988, the ultimate exporter was entitled to receive from the Central
Government CCS. This Scheme has been in operation since 1966 and has
undergone modifications from time to time. Such benefits of CCS and
Supplementary Cash Assistance in lieu of excise duty were also available to
other types of “Deemed Exports” against supplies made by Indian firms to
projects financed by IDA/IBRD/UN Organizations as also against supplies of
some products to Oil and Natural Gas Commission (“ONGC” for short). In
other words, “deemed exports” i.e. supplies made by an indigenous
manufacturer against intermediate advance licenses prior to 30th March,1988
were not entitled to any CCS.
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6. However, on 30th March, 1988, the Commerce Ministry issued a circular
bearing No.1(17)/87-EAC stating therein that the Government had now
decided to extend CCS benefits to the deemed exports i.e. to the supplies made
against the intermediate advance licences. Such supplies were made
admissible for the following benefits:
(a) CCS at 75% of what is admissible to physical exports;
(b) Supplementary Cash Assistance in lieu of duty draw back
wherever admissible; and
(c) Additional CCS in lieu of terminal excise duty wherever
admissible.
7.
The petitioners state that the CCS benefits for physical or direct exports
of textile products like Fur Fabric, had been fixed by Government at 10% of the
FOB value under a Circular No.12/21/89-EAC dated 31 issued by the
Commerce Ministry. Therefore, for deemed export of fur fabrics, CCS was
available at 75% of the CCS on physical exports which came to 7.5% of FOB
value. Under the aforesaid circular, deemed exporters were not only entitled
to receive CCS benefits but they were also entitled to receive additional CCS in
lieu of the terminal Excise Duty being the deemed exporters. As deemed
exports not being direct exports, such exporter had to first pay excise duty.
The additional CCS was, therefore, made refundable in lieu of the excise duty
paid to compensate the deemed exporter to the extent of the excise duty paid.
8. On the basis of the aforesaid circular, the first petitioner was
approached by several ultimate exporters who had advance licenses for
purchase of synthetic fur lining. Such ultimate exporters surrendered their
advance licences to that extent and the 1st petitioner was issued intermediate
advance licenses, on the basis of which the 1st petitioner imported duty free
required raw materials. The 1st petitioner manufactured fur lining from such
raw materials and sold the same to the ultimate exporters. As there was
deemed export and such exports being entitled to CCS under the aforesaid
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circular, the 1st petitioner filed 22 applications to claim CCS benefits quantified
in the sum of Rs.14,66,509.29 and additional CCS amounting to
Rs.11,84,920.90 respectively for the period 1st April, 1989 to May, 1990
annexing all the supporting documents including the additional documents
required to be furnished in terms of circular dated 24th July, 1989.
9. The Joint Chief Controller of Imports and Exports allowed the CCS
claim of the 1st petitioner to the extent of Rs.14,57,648.02 and Rs.1015.63 by
way of additional CCS claim for the aforesaid period. The petitioners,
thereafter, claimed to have submitted 14 applications claiming additional
amount on account of CCS quantified at Rs.9,84,680.71 and Rs.11,00,118.69
by way of additional CCS. A statement of the claims made, compiled in the
form of schedule for the aforesaid period is annexed to the petition at
Exhibit”H”.
10. The petitioners, from time to time, entered into correspondence to claim
the aforesaid amount. However, their claims were repeatedly rejected by the
respondent. With reference to the claim filed on 19th November, 1990,
covering the CCS and additional CCS claims for the month of July, 1990, third
respondent vide letter dated 14th December, 1990 on behalf of 2nd respondent
informed the 1st petitioner that as they had supplied intermediate products to
advance license holders and ultimate exporters who may have claimed CCS
and other benefits against supplies made by them, as such, not entitled to CCS
claims. That is how claim of the 1st petitioner was denied.
11. Aggrieved by the aforesaid orders of repeated rejections, the petitioners
have preferred this writ a petition with prayer to quash and set aside the
orders at Exhibit – I,N.O. and R-1 to R-7 annexed to the petition and prayed
for directions directing the respondents to consider the CCS claim of 1 st
petitioner with further prayer to grant CCS benefits applicable to them
together with the refund of terminal excise duty paid on intermediate exports.
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12. This petition was filed by the petitioners as back as in the year 1992.
Rule was issued on 20th June, 1992. The respondents, at the time of hearing
on admission, were present through their Advocates. In other words the
respondents were aware of this petition right in the year 1992. The
respondent did not care to file any reply/return/counter affidavit almost for a
period of 17 years. For the first time, in the month of September, 2009 filed
another affidavit contending that the petitioners are required to give concrete
evidence that the original advance license holders have not taken CCS benefits
and went to the extent of making a statement that the entire record with
respect to the claim of the petitioners have been destroyed by the respondents
as such, they are not in a position to consider the claim of the petitioners or to
effectively deal with the grievance of the petitioners made in the petition. The
respondents have also filed an affidavit to justify destruction of record in spite
of pendency of the writ petition and expressed their helplessness to justify
rejection of CCS claim for want of record.
13. With the aforesaid rival pleadings, this petition was taken up for
hearing.
THE ISSUE:
14. The core issue involved in this petition is whether the petitioners are
entitled to the benefits of the CCS at 75%, with refund of terminal excise duty
paid on intermediate exports?
RIVAL SUBMISSIONS:
15. Mr.Daruwalla, Learned Counsel for the petitioners submits that the
Government of India, for the first time, by issuing a circular dated 15 th July,
1991 (annexure-“P”) suspended the scheme of CCS w.e.f. 3rd July, 1991. It was
clarified by the said circular that “………all exports effected upto and including
2nd July, 1991 would remain available for their respective rates of CCS”. He,
thus, submits that the refusal and/or denial and/or rejection of the claim of
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the petitioners by the respondents are contrary and inconsistent with the said
circular of the Commerce Ministry dated 3rd July, 1991. In his submission,
respondents are required to honour and follow the said circular dated 3 rd July,
1991 issued by the Ministry of Commerce, Government of India, New Delhi.
16. Mr.Daruwalla further submits that the intention of the Government of
India to grant CCS and certain benefits to deemed exports is evident from the
circular dated 3rd March, 1988 (Exhibit “A”) and another circular dated 19th
April, 1989 and 24th July, 1989 (Exhibit “E” and “F”). According to him all
these circulars were never modified and/or withdrawn until the scheme was
withdrawn w.e.f. 3rd July, 1991 vide circular dated 3rd July, 1991, as stated
hereinabove.
17. Mr.Daruwala submits that from the aforesaid facts, the emerging
position is that the benefits were available to the petitioners for the period
prior to 3rd July, 1991 and that the very fact is reiterated and re-affirmed by the
circular dated 3rd July, 1991. In his submission, petitioners have complied with
every provision of law and required procedure with regard to its claim for CCS
and additional CCS. In fact, according to him, lot many such applications of
the petitioners claiming such benefits have been allowed by the respondents in
the past. In support of his submission, he has produced Exhibit “B”, “C”, and
“G” annexed to the petition wherein the grant of CCS amounting to
Rs.14,57,648.02 and additional CCS in the sum of Rs.1015.63 in favour of the
petitioners is spelt out.
18. Mr.Daruwala further submits that even today, there are no allegations
that the applications of the petitioners are lacking in material facts and/or
particulars so as to dis-entitle them for grant of benefits. He further submits
that the impugned orders refusing to grant CCS benefits are also in violation of
principles of natural justice inasmuch as no personal hearing was ever granted
to the first petitioner. No grounds and/or reasons are specified while rejecting
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their claims. The orders are not speaking orders. In his submission, the
action of the respondents or the orders impugned in the petition are void-ab-
initio.
19. Mr.Daruwala further submits that on the principle of Promissory
Estoppel, the respondents cannot be denied their rightful claim. He submits
that the submissions made in the petition by the petitioners are deemed to
have been accepted including the factual averments made therein for want of
specific denial. He placed reliance on the judgment of this Court in the case of
Sheshrao Nagorao Umap (Dr.) Vs. State of Maharashtra 1985(1) BCR 30 and
the Apex Court judgment in the case of Sushil Kumar Vs. Rakesh Kumar AIR
2004 SC 230.
20. Mr.Daruwala further submits that the first petitioners are entitled to
succeed in the petition and that the first petitioner cannot be deprived of huge
monetary benefits to the extent of Rs.58,63,621.14 to which it is entitled since
June, 1991. He is also claiming interest on the said amount @ 12% p.a., since
the claim of the first petitioner was illegally and erroneously rejected by the
respondents.
21. Per contra, Mr.Sethna, learned Senior Counsel appearing for the
petitioners reiterated and tried to justify the orders refusing to grant CCS and
additional CCS benefits to the petitioners contending that the petitioners
supplied intermediate product to the advance license holders. According to
him, the ultimate exporters must have availed the CCS and other benefits for
the supplies made by the petitioners. He, thus, submits that the respondents
were justified in denying benefits to the petitioners. According to him, the
petitioners are required to give concrete evidence that the original license
holders have not taken CCS benefits. In his submission, the petition is silent
on this count.
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22. Mr.Sethna reiterates that the petitioners are not entitled to the CCS
against the intermediate exports as such respondents were not liable to
entertain claim of the petitioners. He further submits that the since, the
scheme itself has been abolished in the year 1991 as such as on date neither
funds are available nor cheque books are available for making payment to the
petitioners.
23. Mr.Sethna, during the course of hearing, has relied upon the statement
made on oath vide affidavit dated 29th September, 2009 affirmed by
Mr.Vijaykumar Shewale, Joint Director General of Foreign Trade-respondent
No.2 stating therein that the respondent could not locate old files for the
period 1990-92 despite diligent searches made. The files concerning subject
matter could have enabled the respondents to deal with the petitioners’
contentions but, since these files are not available and/or missing and/or
destroyed in the year 2003 as per O & M instructions No.5 dated 22 nd June,
2001, as such, respondents are not in a position to deal with the claim of the
petitioners on merits. He further submits that the office of respondent No.2 is
a huge office and having lacs of files as such old files are required to be
therefore destroyed periodically. Hence, no record is available with respect to
the claim set up by the petitioners. He further submits that it is a bonafide
error on the part of the respondents to destroy records in spite of pendency of
the writ petition. However, at any rate, for want of records, it is not possible to
give fresh comments on merits of the matter at this stage. He tried to justify
the destruction of record based on practice followed in the office of
respondents.
24. Mr.Sethna further submits that the petitioners were asked to make
record available to the respondents so as to enable them to re-construct record
and files to which the petitioners did not agree. Mr. Sethna, thus, submits that
the petitioners be put to the strict proof in support of their claim if at all they
have to succeed before this Court.
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25. In order to counter the aforesaid submissions based on two counter
affidavits filed by the respondents, petitioners have also filed affidavit in
rejoinder and advanced their submission in consonance thereof.
26. Mr.Daruwala, in rejoinder urged that all the original documents were
submitted by the first petitioner along with their applications. That the first
petitioner does not have any record so as to help the respondent to reconstruct
their files. He further submits that it was open for the respondents to consider
the claim of the petitioners in the year 1992 itself when the petition was filed
and official record was available. He further submits that during the pendency
of the petition, the respondents could not have destroyed the record. He,
indirectly tried to suggest that the destruction of record is an attempt to deny
the legitimate claim of the petitioners. He further urged that so far as the
status of the petitioners as deemed exporter is concerned, it was never
disputed by the petitioners. In support of this claim, he placed reliance on the
statement filed on record demonstrating grant of their claim with regard to 22
applications involving grant of CCS claim to the tune of Rs.14,69,509/- and
additional CCS to the extent of Rs.1015.00. In his submission, this grant in
favour of the petitioners has also not been denied by the respondents. In these
circumstances, he submits that the claim of the petitioners is liable to be
upheld.
27. Mr.Daruwala further submits that at no point of time, any notice to
produce the documents was given by the respondents to the first petitioner
well within time. He further reiterates that none of the orders rejecting claim
of the petitioners give any reason in support of the denial. He further submits
that in absence of reasons it cannot be justified. In his submission, it is not
open for the respondents to supplement the grounds of rejection through their
affidavit. Though factually, no reasons are disclosed even in the affidavit filed
in reply to the petition. He placed reliance on the judgment of the apex Court
in the case of Mohinder Singh Gill and Anr. Vs. The Chief Election
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Commissioner, AIR 1978 SC 851 in support of his submission.
CONSIDERATION:
28. Having heard rival parties, this petition is required to be decided on the
basis of rival pleadings available on record. The respondents filed an affidavit
on record to show that they have destroyed entire record relating to the CCS
benefits available to the deemed exporters. Petitioners are contending that
they have submitted all original documents and papers to the respondents. To
this assertion, there is no denial. In none of the orders rejecting claim of the
petitioners any reason leading to incomplete submissions of the application or
non submission of relevant documents is to be found. All the orders rejecting
claim of the petitioners passed from time to time are without any reasons. By
one line order, all claims are rejected. Specimen of one of such orders is as
under:
SPECIMEN ORDER
“…………………………………………………………I am directed to refer to your
letter dated 28th February, 1991 on the above subject and to say that thequestion of grant of CCS benefits on supplies or intermediate goods
under the Intermediate Advance Licensing Scheme to the holders ofduty-free Licences has been considered and it has not been possible to
accede to your request. ………………………………………………………………….
(Emphasis supplied)
29. A reading of the aforesaid order of rejection unequivocally goes to show
that no reasons were given in the rejection order as to why the petitioners
were held not entitled for CCS claim. All these seven letters are more or less
identical and similar. It is not in dispute that 22 applications of the petitioners
were granted and their claim with respect of 22 applications were entertained
treating them as deemed exporters. The petitioners have specifically pleaded
and reiterated in the petition that 11 applications of the petitioners which were
rejected by the respondents were identical arising out of identical transactions
for which there is no denial. The claim of the petitioners on merits are not
denied by the respondents. The grant of 22 applications entertaining CCS
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claim of the petitioners is also not in dispute. It is is also not denied that the
petitioners are not deemed exporters. It is also not denied that the CCS
benefits were not available to the deemed exporters. While rejecting the
application, no personal hearing was given to the petitioners. No reasons are
to be found in the impugned order. Needless to mention that from time to
time this Court as well as the Apex Court has been reiterating that the orders
must always be self contained orders and must indicate reasons so as to enable
the Higher Court to read the mind of the adjudicating authority. The settled
principles of law has not been followed by the respondents while rejecting
claim of the petitioners.
30.
The petitioners are perfectly justified in contending that in absence of
specific denial, the claim of the petitioners is required to be treated as having
been admitted by the respondents. The Apex Court in the case of Sushil
Kumar Vs. Rakesh Kumar (Supra), has ruled that if allegations are not
specifically denied in the written statement or that the statements made by the
petitioners is challenged as incorrect and if the denial is evasive and not
categorical, then Court has to treat it as admissions made in the petition. It is
no doubt true that the Apex Court in the said referred case was dealing with
the Election Petition while making the aforesaid observations, however, the
said observations are based on the provisions of Order VIII Rule 3 of the CPC.
The principles thereof are very much applicable to the pleading in Writ
Petitions. The Division Bench of this Court in the case of Sheshrao Nagorao
Umap (Dr.) Vs. State of Maharashtra (Supra) while dealing with the Writ
Petition has specifically observed that the specific allegations made in the
petition, not denied by the respondents should be treated as admitted by the
respondent. The law in this behalf is well settled. In absence of specific
denial on the part of the respondents with regard to the merits of the claim of
the petitioners, we have no hesitation to hold that the respondents have
admitted their claim.
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31. At this stage, it is relevant to deal with one more contention raised by
Mr.Sethna relating to the reconstruction of record. The submissions made by
the petitioners in this behalf is required to be considered in the light of the
case made out by the petitioners, wherein the petitioners have submitted that
they had submitted all original documents along with their applications in the
year 1991 itself. Again there is denial to this assertion. One can take judicial
note of the fact that the facility of photo copy was not prevalent as is found
today. There is no denial to the statement made by the petitioners that all
original documents were submitted by them to the respondents, if that be so,
then case of the petitioners will have to be accepted. No specific notice to
produce documents was given to the petitioners. The request to supply
documents was orally made in the Court to contest petition. No judicial
directions were ever sought by the Revenue. In this scenario, reliance placed
on the judgment of the Apex Court in the case of State of U.P. Vs. Abhai Raj
Singh and Anr. 2004(4) SCC 6 by Mr.Sethna is misplaced.
32. It needs to be clarified at this juncture to make the record straight that
when the request was made by the petitioners through Mr.Sethna to supply
documents, it was categorically stated before this Court by Mr.Sethna that he
did not require documents to consider the claim of the petitioners but
documents were required to defeat the claim of the petitioners i.e. to contest
the petition. On the top of it, no judicial directions were sought at any time to
get the documents produced. In this backdrop, the request for reconstruction
of record at this belated stage, that too after 18 years, can not be justified as
bonafide.
33. Having said so, it is necessary for this Court to consider as to what
extent the claim of the petitioners can be entertained. The petitioners have
annexed the statement giving details of 14 applications in respect of which the
petitioners are claiming CCS and additional CCS benefits. Both parties are
handicapped for want of documents. The petition is pending in this Court
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since 1992. Almost 18 years have passed. Parties are not in a position to place
original documents on record. Petitioners have stated that they had given
original documents to the authorities concerned. There is no denial to this
assertion as already stated. With this situation, this Court is required to do
justice to the parties. It is, therefore, necessary to consider justifiability of the
claim of the petitioners.
34. Mr.Sethna, appearing for the Revenue is right that unless the petitioners
are put to strict proof, their claim cannot be entertained by this Court. In the
wake of this submission, it became obligatory on part of this Court to find out
to what extent the petitioners have proved their claim.
35.
The petitioners have filed as many as 9 order rejecting their
applications. Those orders are reproduced at Exhibit – “I”, “N”, “O” and R-1 to
R-7. In each of these orders, the file numbers are mentioned. If those file
numbers are co-related with the details given by the petitioners in support of
their claim, the petitioners could only corelate their five applications out of 14,
the details of which are as under:
Sr. Our Inter Jt.CC Date Perio Fur FOB CCS Claim Additional Exhi
No. Ref. medi I&E of d of Fabri in Amount CCS bit
ate File CCS Expo cs (Sale (Terminal No.
Adva No. Appl rt Sq.M s Excise
nce icati trs. Price Duty)
Lice on ) Rs.
nce Clai Rece
No. med ived
Date
1. 8 P/L/ 564/ 19.1 JULY 2498 8743 5901 NIL 3310 NIL 1
3225 3791 1.90 90 1.55 54.0 8.92 0.55
298 6/A 0
M-91
26/9 /REP
/89 8/SR
/604
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2. 26 P/L/ 03/4 09.1 OCT. 4000 1280 1056 NIL 1888 NIL R2
3438 7/03 1.91 90 0.00 000. 00.0 00.0
594 3/00 00 0 0
622/
1-2-9 AM-9
1 1/SE
PT.
90/R
E
3. 28 P/L/ 03/4 06.1 DEC, 3425 1096 9041 NIL 1616 NIL R3
3439 7/03 1.91 90 0.00 000. 9.00 60.0
602 3/00 00 0
626/
5.2.9 AM-9
1 2/RE
P-VII
4. 30 P/L/ 03/4 1.11. DEC. 1500 4190 1885 NIL
ig 1950 NIL R4
3438 7/03 91 90 0.00 00.0 9.52 0.00
560 3/00 0
621/
9.1.9 AM-9
1 2/DE
C.
92/R
E
5. 32 P/L/ 03/4 25.1 DEC. 5000 1397 7333 NIL 6500 NIL R5
3438 7/03 0.91 90 0.00 000. 42.4 0
559 3/00 00 5
9.1.9 620/
1 AM-9
2/JA
N-91
/REP
36. In the aforesaid backdrop, out of 14 applications, the petitioners claim
deserves consideration in respect of five (5) applications only. With respect to
remaining nine (9) applications, the petitioners could not co-relate their claims
with the order of rejection. In other words, remaining order of rejection
cannot be said to be in respect of remaining (9) applications. At any rate, fate
of these nine (9) applications are not known. It is not clear whether they were
granted or rejected.
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37. Having said so, now the question is whether this Court should in
exercise of writ jurisdiction consider the claims of the petitioners on merits
without remanding matter to the respondents or remand them for
consideration afresh. Mr.Daruwala is justified in contending that if the entire
files are destroyed by the respondents and if they do not have any document
with them then no useful purpose would be served by remanding matter back
to the respondents for consideration afresh. He further sought to reiterate that
even before this Court, the respondent could not justify their rejection. All the
while the respondents tried to find hole in the claim of the petitioners. Under
these circumstances, he submits that this Court should consider claim of the
petitioners without remanding the matter for consideration afresh.
38.
Mr.Daruwala also prayed for grant of interest, though no specific prayer
in that behalf is to be found in the petition. However, he submits that the writ
jurisdiction of this Court is wide enough to consider his prayer
notwithstanding absence of prayer in the petition.
39. Mr.Sethna countered the submissions made by Mr.Daruwala and prayed
for remand. He also oppose grant of interest for want of prayer in that behalf.
40. Having heard both of them on this aspect of the matter, we are of the
considered view that, no useful purpose would be served by remanding the
matter after 19 years. For want of documents, there cannot be a proper
consideration of claim by the respondents. The petitioners could co-relate their
five applications in relation to the orders of rejection. In our considered view,
justice would be done if claim of the petitioners vis-a-vis five applications alone
is considered on its own merits.
41. Let us consider the claim of the petitioners on merits. It is not in
dispute that the Government of India vide its circular dated 30th March, 1988
(Exh.A) issues instructions to the extend demand export benefits including
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CCS to the supplies made by the indigenous manufacturers against the duty
free licences with effect from 1.4.1988. The supplies made by the indigenous
manufacturers against duty free licences were held liable to claim CCS at 75%
of what is admissible to physical export and additional CCS in lieu of terminal
excise duty wherever admissible. Benefits given in the said circular came to be
withdrawn by circular dated 15th July, 1991 (Exh.P) with effect from 3.7.1991.
It is, thus, clear that the CCS benefits to the extent of 75% of the admissible
physical export were available till 3.7.1991.
42. Having said so, now the question needs to be considered is: as to
whether or not the petitioners could be said to be falling within the category
of deemed exporters. The petitioners, on the basis of their pleadings (in
absence of denial), have proved that they were deemed exporters and their
part of the claim to the extent of Rs.14,57,648.02 was granted and so far as
terminal excise duty is concerned, it was granted only in respect of one
application that too in the sum of Rs.1,015/- only. There is no denial to this
assertion. The grant of CCS claim to the petitioners to this extent has not been
denied. It is, thus, clear that claim in respect of 22 applications made by the
petitioners was entertained and granted by the Revenue. Based on these
proved facts, one can legitimately come to the conclusion that petitioners were
entitled to claim CCS benefit and additional CCS in lieu of terminal excise duty
wherever admissible. As already stated, the petitioners could establish their
claim vis-a-vis 5 applications since they could co-relate their 5 applications
with the order of rejection placed on record.
43. The respondents could not justify destruction of record, especially, when
they were served with the petition in the year 1991 and the petition was very
much pending for adjudication in this Court. For want of record, legitimate
claim of the petitioner cannot be denied.
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44. The petitioners can conveniently be said to be the person falling within
the sweep of the category of deemed exporters. Having gone through the
circular dated 15th July, 1991, in para-1 thereof it is clear that the scheme of
CCS has been suspended with effect from 3.7.1991. In para-2 thereof it is
abundantly made clear and clarified that all exports effected upto and
including 2nd July, 1991 would remain eligible for the respective rate of CCS.
In the circumstances, we hold that the petitioners are entitled to grant of of
CCS claim to the extent of 5 applications enumerated in para- 35 (supra) to
the extent of Rs.3,14,620.97. So far as claim of additional CCS by the
petitioners is concerned, this Court found that in respect of almost 21
applications as reflected in Exh.G, additional CCS claim of the petitioners was
denied by the respondents in respect of almost all the applications barring
small claim granted in the sum of Rs.1,015/-. In this view of the matter, we do
not think we would be justified in allowing the additional CCS claims set up by
the petitioners.
45. Instant case is glaring instance for culpable delay in settlement of CCS
claim due to the petitioner for which no justification was placed before us. It
would appear from the language of Article 226 of the Constitution of India that
one of the objects of Article is to enforce statutory duty and to call upon State
to discharge its legal obligation. A Writ of mandamus can be prayed for, for
enforcement of statutory duties or to compel a person holding a public office
to do or forbear from doing something which is incumbent upon him to do or
forbear from doing under the provisions of any law. Assuming that the
respondents in the present case are public servants, it is said that the statutory
duties which it is incumbent upon them to discharge are precisely the duties
which are flowing from the circulars issued from time to time and pressed into
service by the petitioners. Article 226 of the Constitution gives this Court very
wide discretion in the matter of framing our writs to suit the exigencies of
particular cases, and the application of the petitioner cannot be thrown out
simply on the ground that the proper writ or direction has not been prayed for
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(See Charanjit Lal Chowdhury Vs. Union of India AIR 1951 SC 41). Idea of
grant of interest is to compensate the person for deprivation of money. In the
instant case, the petitioners were erroneously denied their claim to the extent
allowed in the petition. In this view of the matter, in our considered view,
petitioners would be entitled to interest @ 6% p.a. from the date of their claim
set up in the petition.
46. In the ultimate conclusion, we hold that the petitioners shall not be
entitled to claim additional CCS. However, they are entitled to claim CCS in
respect of 5 applications described in para-35 (supra) quantified in the sum of
Rs.3,14,620.97 with interest thereon @ 6% p.a. from the date of petition i.e.
1st May, 1992 till payment in full and final.
47. In the result, petition is partly allowed. Rule is made absolute in terms
of this order with no order as to costs.
(K.K.TATED,J.) (V.C.DAGA,J.)
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