{"id":77785,"date":"2010-03-12T00:00:00","date_gmt":"2010-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharashtra-fur-fabrics-ltd-vs-union-of-india-on-12-march-2010"},"modified":"2016-06-06T21:01:30","modified_gmt":"2016-06-06T15:31:30","slug":"maharashtra-fur-fabrics-ltd-vs-union-of-india-on-12-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharashtra-fur-fabrics-ltd-vs-union-of-india-on-12-march-2010","title":{"rendered":"Maharashtra Fur Fabrics Ltd vs Union Of India on 12 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Maharashtra Fur Fabrics Ltd vs Union Of India on 12 March, 2010<\/div>\n
Bench: V.C. Daga, K. K. Tated<\/div>\n
                                                :1:\n\n    bgp\n                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                    \n                           ORDINARY ORIGINAL CIVIL JURISDICTION \n\n\n\n\n                                                            \n                                WRIT PETITION NO.975 OF 1992\n\n\n    1.       Maharashtra Fur Fabrics Ltd. \n\n\n\n\n                                                           \n             a Company incorporated under\n             the Companies Act,1956, and \n             having its registered office at \n             Podar Chambers, S.A.Brelvi Road,\n\n\n\n\n                                                     \n             Fort, Bombay - 400 001.\n\n\n    2.\n                                  \n             Shri.M.S.Deokule of Bombay,\n                                 \n             Indian Inhabitant, residing at\n             B-1\/33, Technocrat Society Veer\n             Savarkar Marg, Prabhadevi,\n           \n\n             Bombay - 400 025.                                        ..Petitioners\n        \n\n\n\n                   Vs.\n\n\n    1.       Union of India\n\n\n\n\n\n    2.       The Chief Controller of Imports and Exports,\n             Government of India, Ministry of Commerce,\n             Udyog Bhavan, New Delhi,\n\n\n\n\n\n    3.       The Joint Chief Controller of Imports\n             & Exports, Government of India, Ministry of\n             Commerce, having his office at New Central\n             Government Office Building, New Marine Lines,\n             Churchgate, Bombay - 400 020.                            ..Respondents\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 15:42:35 :::\n                                                   :2:\n\n\n\n    Mr.H.Daruwalla   a\/w.   Mr.Parag   Sawant   i\/b.   Crawford   Baley   &   Co.for \n\n\n\n\n                                                                                           \n    petitioners.\n\n\n\n\n                                                                   \n    Mr.M.I.Sethna, Senior Advocate with Mr.H.V.Mehta for respondents.\n\n\n                                                        CORAM :-     V.C.DAGA &\n\n\n\n\n                                                                  \n                                                                    K.K.TATED,JJ. \n                         JUDGMENT RESERVED ON  :   24TH FEBRUARY, 2010\n                         JUDGMENT DELIVERED ON :   12TH MARCH, 2010\n\n\n\n\n                                                       \n    JUDGMENT (PER : V.C.DAGA,J.)\n<\/pre>\n
    1.<\/p>\n
              This petition is directed against the various orders passed from time to
\n    time by the respondent incorporated at Exhibit-I,N,O and R1 to R7, whereby <\/p>\n
    and whereunder, the Ministry of Commerce, Government of India, New Delhi
\n    denied cash incentive known as Cash Compensatory Support (“CCS” for short)
\n    to the petitioners.\n<\/p>\n
    THE BACKGROUND FACTS :\n<\/p>\n
    2.        The background facts lie in a narrow compass.   First   petitioner   carries
\n    on business of manufacturing High ‘Pile Fur Fabrics’.   They have a factory in a <\/p>\n
    Government notified backward area outside Bombay.  The second petitioner is
\n    the shareholder of the first petitioner and a citizen of India.\n<\/p>\n
    3.        The   Government   of   India   in   order   to   save   foreign   exchange   and
\n    promote   exports   by   indigenous   manufacturers   had   introduced   the   Duty
\n    Exemption Scheme in the Import Export Policy AM-1985-88.  The said Scheme
\n    was also introduced with some changes in the Import-Export Policies for the
\n    year   April\/March,1988\/91   and   April\/March-1990-93.     Chapter   XIX   thereof
\n    dealt with the aforesaid Duty Exemption Scheme.  As per paragraph 219(1) of
\n    the 1988-91 Policy and paragraph 229 of the 1990-93 respectively, laid down <\/p>\n
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\n                                                    :3:<\/span><\/p>\n
    the objectives of the Duty Exemption Scheme, which was to make available to
\n    the   Registered   Exports,   the   necessary   inputs   for   export   production   at <\/p>\n
    International   prices   without   payment   of   customs   duty   so   as   to   make   the <\/p>\n
    exports   competitive   in   the   International   markets.     The   Scheme   covered   3
\n    categories   of   licenses;   viz;   (1)   Advance   Licenses   (2)   Intermediate   Advance
\n    Licenses (3) Special Imprest Licenses.   The definitions of these licenses have <\/p>\n
    been   set   out   in   paragraphs   220   and   231   of   the   aforesaid   two   policies
\n    respectively.  The deemed exporter was defined in the policies as                    “supplies
\n    made in India of Intermediate products to holders of Advance Licenses under
\n    the Scheme for supply of intermediate products contained in Chapter XIX.\n<\/p>\n
    4.<\/p>\n
            In order to avail the benefits under the Duty Exemption Scheme, the
\n    exporters   and   deemed   exporters   were   required   to   register   themselves   with <\/p>\n
    appropriate registering authority, which in the case of 1st  petitioner was the
\n    “Synthetic and Rayon Textile Export Promotion Council”, Bombay.   The first
\n    petitioner was registered with the said Promotion Council as far back as 1986 <\/p>\n
    as a registered Manufacturer.\n<\/p>\n
    5.      By   virtue   of   various   Circulars  issued   from  time  to  time   prior   to   30 th
\n    March, 1988, the ultimate exporter was   entitled to receive from the Central
\n    Government  CCS.    This Scheme  has been in operation since   1966  and  has <\/p>\n
    undergone   modifications   from   time   to   time.   Such   benefits   of   CCS   and
\n    Supplementary Cash Assistance in lieu of excise duty were also available to
\n    other   types   of   “Deemed   Exports”   against   supplies   made   by   Indian   firms   to <\/p>\n
    projects financed by IDA\/IBRD\/UN Organizations as also against supplies of
\n    some products to Oil and Natural Gas Commission (“ONGC” for short).   In
\n    other   words,   “deemed   exports”   i.e.   supplies   made   by   an   indigenous
\n    manufacturer against intermediate advance licenses prior to 30th  March,1988
\n    were not entitled to any CCS.\n<\/p>\n
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\n                                                    :4:<\/span><\/p>\n
    6.      However, on 30th March, 1988, the Commerce Ministry issued a circular
\n    bearing   No.1(17)\/87-EAC   stating   therein   that   the   Government   had   now <\/p>\n
    decided to extend CCS benefits to the deemed exports i.e. to the supplies made <\/p>\n
    against   the   intermediate   advance   licences.     Such   supplies   were   made
\n    admissible for the following benefits:\n<\/p>\n
            (a)     CCS at 75% of what is admissible to physical exports;\n<\/p><\/blockquote>\n
            (b)     Supplementary Cash Assistance in lieu of duty draw back
\n                    wherever admissible; and\n<\/p><\/blockquote>\n
            (c)     Additional CCS in lieu of terminal excise duty wherever
\n                    admissible.\n<\/p><\/blockquote>\n
    7.<\/p>\n
            The petitioners state that the CCS benefits for physical or direct exports
\n    of textile products like Fur Fabric, had been fixed by Government at 10% of the <\/p>\n
    FOB   value   under   a   Circular   No.12\/21\/89-EAC   dated   31   issued   by   the
\n    Commerce   Ministry.     Therefore,   for   deemed   export  of   fur   fabrics,  CCS   was
\n    available at 75% of the CCS on physical exports which came to 7.5% of FOB <\/p>\n
    value.  Under the aforesaid circular, deemed exporters were not only entitled
\n    to receive CCS benefits but they were also entitled to receive additional CCS in <\/p>\n
    lieu   of   the   terminal   Excise   Duty   being   the   deemed   exporters.     As   deemed
\n    exports not being direct exports, such exporter had to first pay excise duty.
\n    The additional CCS was, therefore, made refundable in lieu of the excise duty <\/p>\n
    paid to compensate the deemed exporter to the extent of the excise duty paid.\n<\/p>\n
    8.      On   the   basis   of   the   aforesaid   circular,   the   first   petitioner   was <\/p>\n
    approached   by   several   ultimate   exporters   who   had   advance   licenses   for
\n    purchase  of synthetic fur lining.   Such  ultimate  exporters surrendered their
\n    advance licences to that extent and the 1st petitioner was issued intermediate
\n    advance licenses, on the basis of which the 1st  petitioner imported duty free
\n    required raw materials.  The 1st petitioner manufactured fur lining from such
\n    raw   materials   and   sold   the   same   to   the   ultimate   exporters.     As   there   was
\n    deemed export and such exports being entitled to CCS under the aforesaid <\/p>\n
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\n                                                     :5:<\/span><\/p>\n
    circular, the 1st petitioner filed 22 applications to claim CCS benefits quantified
\n    in   the   sum   of   Rs.14,66,509.29   and   additional   CCS   amounting   to <\/p>\n
    Rs.11,84,920.90   respectively   for   the   period   1st  April,   1989   to   May,   1990 <\/p>\n
    annexing   all   the   supporting   documents   including   the   additional   documents
\n    required to be furnished in terms of  circular dated 24th July, 1989.\n<\/p>\n
    9.      The   Joint   Chief   Controller   of   Imports   and   Exports   allowed   the   CCS
\n    claim of the 1st petitioner to the extent of Rs.14,57,648.02 and Rs.1015.63 by
\n    way   of   additional   CCS   claim   for   the   aforesaid   period.     The   petitioners,
\n    thereafter,   claimed   to   have   submitted   14   applications   claiming   additional <\/p>\n
    amount on account of CCS quantified at Rs.9,84,680.71 and Rs.11,00,118.69 <\/p>\n
    by way of additional CCS.   A statement of the claims made, compiled in the
\n    form   of   schedule   for   the   aforesaid   period   is   annexed   to   the   petition   at <\/p>\n
    Exhibit”H”.\n<\/p>\n
    10.     The petitioners, from time to time, entered into correspondence to claim <\/p>\n
    the aforesaid amount.  However, their claims were repeatedly rejected by the
\n    respondent.     With   reference   to   the   claim   filed   on   19th  November,   1990, <\/p>\n
    covering the CCS and additional CCS claims for the month of July, 1990, third
\n    respondent vide letter dated 14th December, 1990 on behalf of 2nd respondent
\n    informed the 1st petitioner that as they had supplied intermediate products to <\/p>\n
    advance license holders and ultimate exporters who may have claimed CCS
\n    and other benefits against supplies made by them, as such, not entitled to CCS
\n    claims.  That is how claim of the 1st petitioner was denied.\n<\/p>\n
    11.     Aggrieved by the aforesaid orders of repeated rejections, the petitioners
\n    have   preferred   this   writ   a   petition   with   prayer   to   quash   and   set   aside   the
\n    orders at Exhibit – I,N.O. and R-1 to R-7 annexed to the petition and prayed
\n    for   directions   directing   the   respondents   to   consider   the   CCS   claim   of   1 st
\n    petitioner   with   further   prayer   to   grant   CCS   benefits   applicable   to   them
\n    together with the refund of terminal excise duty paid on intermediate exports.\n<\/p>\n
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\n                                                    :6:<\/span><\/p>\n
    12.     This petition was filed by the petitioners as back as in the year 1992.
\n    Rule was issued on 20th June, 1992.  The respondents, at the time of hearing <\/p>\n
    on   admission,   were   present   through   their   Advocates.     In   other   words   the <\/p>\n
    respondents   were   aware   of   this   petition   right   in   the   year   1992.     The
\n    respondent did not care to file any reply\/return\/counter affidavit almost for a
\n    period of 17 years.  For the first time, in the month of September, 2009 filed <\/p>\n
    another affidavit contending that the petitioners are required to give concrete
\n    evidence that the original advance license holders have not taken CCS benefits
\n    and   went   to   the   extent   of   making   a   statement   that   the   entire   record   with
\n    respect to the claim of the petitioners have been destroyed by the respondents <\/p>\n
    as such, they are not in a position to consider the claim of the petitioners or to <\/p>\n
    effectively deal with the grievance of the petitioners made in the petition.  The
\n    respondents have also filed an affidavit to justify destruction of record in spite <\/p>\n
    of   pendency   of   the   writ  petition  and   expressed   their   helplessness   to   justify
\n    rejection of CCS claim for want of record.\n<\/p>\n
    13.     With   the   aforesaid   rival   pleadings,   this   petition   was   taken   up   for
\n    hearing.\n<\/p>\n
    THE ISSUE:\n<\/p>\n
    14.     The core issue involved in this petition is whether the petitioners are <\/p>\n
    entitled to the benefits of the CCS at 75%, with refund of  terminal excise duty
\n    paid on intermediate exports?\n<\/p>\n
    RIVAL SUBMISSIONS:\n<\/p>\n
    15.     Mr.Daruwalla,   Learned   Counsel   for   the  petitioners   submits   that   the
\n    Government of India, for the first time, by issuing a circular dated 15 th  July,
\n    1991 (annexure-“P”) suspended the scheme of CCS w.e.f. 3rd July, 1991.  It was
\n    clarified by the said circular that “………all exports effected upto and including
\n    2nd  July, 1991 would remain available for their respective rates of CCS”.  He,
\n    thus, submits that the refusal and\/or denial and\/or rejection of the claim of <\/p>\n
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\n                                               :7:<\/span><\/p>\n
    the petitioners by the respondents are contrary and inconsistent with the said
\n    circular of the Commerce Ministry dated 3rd  July, 1991.   In his submission, <\/p>\n
    respondents are required to honour and follow the said circular dated 3 rd July, <\/p>\n
    1991 issued by the Ministry of Commerce, Government of India, New Delhi.\n<\/p>\n
    16.    Mr.Daruwalla further submits that the intention of the Government of <\/p>\n
    India to grant CCS and certain benefits to deemed exports is evident from the
\n    circular dated 3rd  March, 1988 (Exhibit “A”) and another circular dated 19th
\n    April, 1989 and 24th  July, 1989 (Exhibit “E” and “F”).   According to him all
\n    these circulars were never modified and\/or withdrawn until the scheme was <\/p>\n
    withdrawn w.e.f. 3rd  July,  1991 vide  circular  dated  3rd  July,  1991,  as stated
\n    hereinabove.\n<\/p>\n
    17.    Mr.Daruwala   submits   that   from   the   aforesaid   facts,   the   emerging
\n    position is that the benefits were available to the petitioners for the period
\n    prior to 3rd July, 1991 and that the very fact is reiterated and re-affirmed by the <\/p>\n
    circular dated 3rd July, 1991.  In his submission, petitioners have complied with
\n    every provision of law and required procedure with regard to its claim for CCS <\/p>\n
    and additional CCS.  In fact, according to him, lot many such applications of
\n    the petitioners claiming such benefits have been allowed by the respondents in
\n    the past.  In support of his submission, he has produced Exhibit “B”, “C”, and <\/p>\n
    “G”   annexed   to   the   petition   wherein   the   grant   of   CCS   amounting   to
\n    Rs.14,57,648.02 and additional CCS in the sum of  Rs.1015.63 in favour of the
\n    petitioners is spelt out.\n<\/p>\n
    18.    Mr.Daruwala further submits that even today, there are no allegations
\n    that the applications of the petitioners are lacking   in material facts and\/or
\n    particulars  so as to dis-entitle them for grant of benefits.   He further submits
\n    that the impugned orders refusing to grant CCS benefits are also in violation of
\n    principles of natural justice inasmuch as no personal hearing was ever granted
\n    to the first petitioner.  No grounds and\/or reasons are specified while rejecting <\/p>\n
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\n                                                     :8:<\/span><\/p>\n
    their   claims.       The   orders  are   not  speaking   orders.     In  his  submission,   the
\n    action of the respondents or the orders  impugned in the petition are void-ab-\n<\/p>\n
    initio.\n<\/p>\n
    19.       Mr.Daruwala   further   submits   that   on   the   principle   of   Promissory
\n    Estoppel, the respondents cannot be denied their rightful claim. He submits <\/p>\n
    that the submissions made in the petition by the petitioners are deemed to
\n    have been accepted including the factual averments made therein for want of
\n    specific denial.  He placed reliance on the judgment of this Court in the case of
\n    Sheshrao Nagorao Umap (Dr.) Vs. State of Maharashtra 1985(1) BCR 30 and <\/p>\n
    the Apex Court judgment in the case of  Sushil Kumar Vs. Rakesh Kumar AIR
\n    2004 SC 230.\n<\/p>\n
    20.       Mr.Daruwala   further   submits   that   the   first   petitioners   are   entitled   to
\n    succeed in the petition and that the first petitioner cannot be deprived of huge
\n    monetary benefits to the extent of Rs.58,63,621.14 to which it is entitled since <\/p>\n
    June, 1991.  He is also claiming interest on the said amount @ 12% p.a., since
\n    the claim of the first petitioner was illegally and erroneously rejected by the <\/p>\n
    respondents.\n<\/p>\n
    21.       Per   contra,   Mr.Sethna,   learned   Senior   Counsel   appearing   for   the <\/p>\n
    petitioners reiterated and tried to justify the orders refusing to grant CCS and
\n    additional   CCS   benefits   to   the   petitioners   contending   that   the   petitioners
\n    supplied intermediate product to the advance license holders.   According to <\/p>\n
    him, the ultimate exporters must have availed the CCS and other benefits for
\n    the supplies made by the petitioners.  He, thus, submits that the respondents
\n    were justified in denying benefits to the petitioners.   According to him, the
\n    petitioners   are   required   to   give   concrete   evidence   that   the   original   license
\n    holders have not taken CCS benefits.  In his submission, the petition is silent
\n    on this count.\n<\/p>\n
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\n                                                       :9:<\/span><\/p>\n
    22.      Mr.Sethna   reiterates   that   the   petitioners   are   not   entitled   to   the   CCS
\n    against   the   intermediate   exports   as   such   respondents   were   not   liable   to <\/p>\n
    entertain   claim   of   the   petitioners.     He   further   submits   that   the   since,   the <\/p>\n
    scheme itself has been abolished in the year  1991 as such as on date neither
\n    funds are available nor cheque books are available for making payment to the
\n    petitioners.\n<\/p>\n
    23.      Mr.Sethna, during the course of hearing, has relied upon the  statement
\n    made   on   oath   vide   affidavit   dated   29th  September,   2009   affirmed   by
\n    Mr.Vijaykumar   Shewale,  Joint  Director   General   of   Foreign  Trade-respondent <\/p>\n
    No.2   stating   therein   that   the   respondent   could   not   locate   old   files   for   the <\/p>\n
    period 1990-92 despite diligent searches made.   The files concerning subject
\n    matter   could   have   enabled   the   respondents   to   deal   with   the   petitioners’ <\/p>\n
    contentions   but,   since   these   files   are   not   available   and\/or   missing   and\/or
\n    destroyed in the year 2003 as per O & M instructions No.5 dated 22 nd  June,
\n    2001, as such, respondents are not in a position to deal with the claim of the <\/p>\n
    petitioners on merits.  He further submits that the office of respondent No.2 is
\n    a   huge   office   and   having   lacs   of   files   as   such   old   files   are   required   to   be <\/p>\n
    therefore destroyed periodically.  Hence, no record is available with respect to
\n    the claim set up by the petitioners.   He further submits that it is a bonafide
\n    error on the part of the respondents to destroy records in spite of pendency of <\/p>\n
    the writ petition. However, at any rate, for want of records, it is not possible to
\n    give fresh comments on merits of the matter at this stage.  He tried to justify
\n    the   destruction   of   record   based   on   practice   followed   in   the   office   of <\/p>\n
    respondents.\n<\/p>\n
    24.      Mr.Sethna   further   submits   that   the   petitioners   were   asked   to   make
\n    record available to the respondents so as to enable them to re-construct record
\n    and files to which the petitioners did not agree. Mr. Sethna, thus, submits that
\n    the petitioners be put to the strict proof in support of their claim if at all they
\n    have to succeed before this Court.\n<\/p>\n
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\n                                                    :10:<\/span><\/p>\n
    25.     In   order   to   counter   the   aforesaid   submissions   based   on   two   counter
\n    affidavits   filed   by   the   respondents,   petitioners   have   also   filed   affidavit   in <\/p>\n
    rejoinder and advanced their submission in consonance thereof.\n<\/p>\n
    26.     Mr.Daruwala,   in rejoinder urged that all the original documents were
\n    submitted by the first petitioner along with their applications.   That the first <\/p>\n
    petitioner does not have any record so as to help the respondent to reconstruct
\n    their files.  He further submits that it was open for the respondents to consider
\n    the claim of the petitioners in the year 1992 itself when the petition was filed
\n    and official record was available.  He further submits that during the pendency <\/p>\n
    of   the   petition,   the   respondents   could   not  have   destroyed   the   record.     He, <\/p>\n
    indirectly tried to suggest that the destruction of record is an attempt to deny
\n    the legitimate claim of the petitioners.   He further urged that so far as the <\/p>\n
    status   of   the   petitioners   as   deemed   exporter   is   concerned,   it   was   never
\n    disputed by the petitioners.  In support of this claim, he placed reliance on the
\n    statement filed on record demonstrating grant of their claim with regard to 22 <\/p>\n
    applications involving grant of CCS claim to the tune of Rs.14,69,509\/- and
\n    additional CCS to the extent of Rs.1015.00.   In his submission, this grant in <\/p>\n
    favour of the petitioners has also not been denied by the respondents.  In these
\n    circumstances,   he   submits   that   the   claim   of   the   petitioners   is   liable   to   be
\n    upheld.\n<\/p>\n
    27.     Mr.Daruwala   further   submits   that   at   no   point   of   time,   any   notice   to
\n    produce the documents was given by the respondents to the first petitioner <\/p>\n
    well within time.  He further reiterates that none of the orders rejecting claim
\n    of the petitioners give any reason in support of the denial.  He further submits
\n    that in absence of reasons it cannot be justified.   In his submission, it is not
\n    open for the respondents to supplement the grounds of rejection through their
\n    affidavit.  Though factually, no reasons are disclosed even in the affidavit filed
\n    in reply to the petition.  He placed reliance on the judgment of the apex Court
\n    in   the   case   of  Mohinder   Singh   Gill   and   Anr.   Vs.   The   Chief   Election <\/p>\n
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\n                                                        :11:<\/span><\/p>\n
    Commissioner, AIR 1978 SC 851 in support of his submission.\n<\/p>\n
    CONSIDERATION:\n<\/p>\n
    28.      Having heard rival parties, this petition is required to be decided on the
\n    basis of rival pleadings available on record.  The respondents filed an affidavit
\n    on record to show that they have destroyed entire record relating to the CCS <\/p>\n
    benefits available to the deemed exporters.   Petitioners are contending that
\n    they have submitted all original documents and papers to the respondents.   To
\n    this assertion, there is no denial.  In none of the orders rejecting claim of the
\n    petitioners any reason leading to incomplete submissions of the application or <\/p>\n
    non submission of relevant documents is to be found.  All the orders rejecting <\/p>\n
    claim of the petitioners passed from time to time are without any reasons.  By
\n    one line order, all claims are rejected.   Specimen of one of such orders is as <\/p>\n
    under:\n<\/p>\n
                                                 SPECIMEN ORDER
\n             “…………………………………………………………I am directed to refer to your
\n             letter dated 28th February, 1991 on the above subject and to say that the <\/p>\n
             question of grant of CCS benefits on supplies or intermediate goods
\n             under the Intermediate Advance Licensing Scheme to the holders of  <\/p>\n
             duty-free Licences has been considered and it has not been possible to
\n             accede to your request. ………………………………………………………………….\n<\/p><\/blockquote>\n
                                                                                    (Emphasis supplied)<\/p>\n<\/blockquote>\n
    29.      A reading of the aforesaid order of rejection unequivocally goes to show
\n    that no reasons were given in the rejection order as to why the petitioners
\n    were held not entitled for CCS claim.  All these seven letters are more or less <\/p>\n
    identical and similar.  It is not in dispute that 22 applications of the petitioners
\n    were granted and their claim with respect of 22 applications were entertained
\n    treating them as deemed exporters.  The petitioners have specifically pleaded
\n    and reiterated in the petition that 11 applications of the petitioners which were
\n    rejected by the respondents were identical arising out of identical transactions
\n    for which there is no denial.   The claim of the petitioners on merits are not
\n    denied  by  the   respondents.    The   grant  of  22  applications  entertaining  CCS <\/p>\n
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\n                                                    :12:<\/span><\/p>\n
    claim of the petitioners is also not in dispute.  It is is also  not denied that the
\n    petitioners   are   not   deemed   exporters.     It   is   also   not   denied   that   the   CCS <\/p>\n
    benefits   were   not   available   to   the   deemed   exporters.     While   rejecting   the <\/p>\n
    application, no personal hearing was given to the petitioners.  No reasons are
\n    to be found in the impugned order.   Needless to mention that from time to
\n    time this Court as well as the Apex Court has been reiterating that the orders <\/p>\n
    must always be self contained orders and must indicate reasons so as to enable
\n    the Higher Court to read the mind of the adjudicating authority.  The settled
\n    principles  of   law   has  not  been  followed   by  the   respondents  while   rejecting
\n    claim of the petitioners.\n<\/p>\n
    30.<\/p>\n
            The petitioners are perfectly justified in contending that in absence of
\n    specific denial, the claim of the petitioners is required to be treated as having <\/p>\n
    been   admitted   by   the   respondents.     The   Apex   Court   in   the   case   of  Sushil
\n    Kumar   Vs.   Rakesh   Kumar  (Supra),   has   ruled   that   if   allegations   are   not
\n    specifically denied in the written statement or that the statements made by the <\/p>\n
    petitioners   is   challenged   as   incorrect   and   if   the   denial   is   evasive   and   not
\n    categorical, then Court has to treat it  as admissions made in the petition.  It is <\/p>\n
    no doubt true that the Apex Court in the said referred case was dealing with
\n    the   Election  Petition  while   making  the   aforesaid   observations,   however,  the
\n    said observations are based on the provisions of Order VIII Rule 3 of the CPC.\n<\/p>\n
    The   principles   thereof   are     very   much   applicable   to   the   pleading   in   Writ
\n    Petitions.   The Division Bench of this Court in the case of  Sheshrao Nagorao
\n    Umap   (Dr.)   Vs.   State   of   Maharashtra  (Supra)   while   dealing   with   the   Writ <\/p>\n
    Petition   has   specifically   observed   that   the   specific   allegations   made   in   the
\n    petition, not denied by the respondents should be treated as admitted by the
\n    respondent.   The law in this behalf is well settled.   In   absence of specific
\n    denial on the part of the respondents with regard to the merits of the claim of
\n    the   petitioners,   we   have   no   hesitation   to   hold   that   the   respondents   have
\n    admitted their claim.\n<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 15:42:35 :::<\/span>
\n                                                  :13:<\/span><\/p>\n
    31.     At this stage, it is relevant to deal with one more contention raised by
\n    Mr.Sethna relating to the reconstruction of record.  The submissions made by <\/p>\n
    the petitioners in this behalf is required to be considered in the light of the <\/p>\n
    case made out by the petitioners, wherein the petitioners have submitted that
\n    they had submitted all original documents along with their applications in the
\n    year 1991 itself.  Again there is denial to this assertion.  One can take judicial <\/p>\n
    note of the fact that the facility of photo copy was not prevalent as is found
\n    today.   There is no denial to the statement made by the petitioners that all
\n    original documents were submitted by them to the respondents, if that be so,
\n    then case of the petitioners will have to be accepted.   No specific notice to <\/p>\n
    produce   documents   was   given   to   the   petitioners.     The   request   to   supply <\/p>\n
    documents   was   orally   made   in   the   Court   to   contest   petition.     No   judicial
\n    directions were ever sought by the Revenue.  In this scenario, reliance placed <\/p>\n
    on the judgment of the Apex Court in the case of  State of U.P. Vs. Abhai Raj
\n    Singh and Anr. 2004(4) SCC 6 by Mr.Sethna is misplaced.\n<\/p>\n
    32.     It needs to be clarified at this juncture to make the record straight that
\n    when the request was made by the petitioners   through Mr.Sethna to supply <\/p>\n
    documents, it was categorically stated before this Court by Mr.Sethna that he
\n    did   not   require   documents   to   consider   the   claim   of   the   petitioners   but
\n    documents were required to defeat the claim of the petitioners i.e. to contest <\/p>\n
    the petition.  On the top of it, no judicial directions were sought at any time to
\n    get the documents produced.  In this backdrop, the request for reconstruction
\n    of record at this belated stage, that too after 18 years, can not be justified as <\/p>\n
    bonafide.\n<\/p>\n
    33.     Having   said  so,  it  is   necessary   for  this  Court  to   consider   as  to   what
\n    extent the claim of the petitioners can be entertained.   The petitioners have
\n    annexed the statement giving details of 14 applications  in respect of which the
\n    petitioners are claiming CCS and additional CCS benefits.   Both parties are
\n    handicapped for want of documents.   The petition is pending in this Court <\/p>\n
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\n                                                   :14:<\/span><\/p>\n
    since 1992.  Almost 18 years have passed.  Parties are not in a position to place
\n    original   documents   on  record.     Petitioners   have   stated   that  they   had   given <\/p>\n
    original documents to the authorities concerned.   There is no denial to this <\/p>\n
    assertion as already stated.   With this situation, this Court is required to do
\n    justice to the parties.  It is, therefore, necessary to consider justifiability of the
\n    claim of the petitioners.\n<\/p>\n
    34.     Mr.Sethna, appearing for the Revenue is right that unless the petitioners
\n    are put to strict proof, their claim cannot be entertained by this Court.  In the
\n    wake of this submission, it became obligatory on part of this Court to find out <\/p>\n
    to what extent the petitioners have proved their claim.\n<\/p>\n
    35.<\/p>\n
            The   petitioners   have   filed   as   many   as   9   order   rejecting   their <\/p>\n
    applications.  Those orders are reproduced at Exhibit – “I”, “N”, “O” and R-1 to
\n    R-7.   In each of these orders, the file numbers are mentioned.   If those file
\n    numbers are co-related with the details given by the petitioners in support of <\/p>\n
    their claim, the petitioners could only corelate their five applications out of 14,
\n    the details of which are as under:<\/p>\n
\n        \n\n\n\n    Sr.    Our    Inter   Jt.CC   Date    Perio Fur       FOB  CCS   Claim  Additional  Exhi\n    No.    Ref.   medi    I&E     of      d   of  Fabri   in    Amount      CCS         bit \n\n\n\n\n\n                  ate     File    CCS     Expo cs         (Sale             (Terminal  No.\n                  Adva    No.     Appl    rt      Sq.M    s                 Excise \n                  nce             icati           trs.    Price             Duty)\n                  Lice            on                      ) Rs.\n                  nce                                                         Clai Rece\n                  No.                                                         med ived\n\n\n\n\n\n                  Date\n    1.     8      P\/L\/ 564\/ 19.1 JULY  2498 8743 5901 NIL                     3310 NIL       1\n                  3225 3791 1.90 90    1.55 54.0 8.92                         0.55\n                  298 6\/A                   0<\/span>\n                       M-91\n                  26\/9 \/REP \n                  \/89 8\/SR\n                       \/604\n\n\n\n\n                                                                    ::: Downloaded on - 09\/06\/2013 15:42:35 :::<\/span>\n                                                   :15:<\/span>\n\n    2.      26     P\/L\/ 03\/4 09.1 OCT. 4000 1280 1056 NIL                      1888 NIL       R2\n                   3438 7\/03 1.91 90   0.00 000. 00.0                          00.0\n\n\n\n\n                                                                                             \n                   594 3\/00                 00   0                             0<\/span>\n                         622\/\n                   1-2-9 AM-9\n\n\n\n\n                                                                     \n                   1     1\/SE\n                         PT.\n                         90\/R\n                         E\n    3.      28     P\/L\/ 03\/4 06.1 DEC, 3425 1096 9041 NIL                      1616 NIL       R3\n\n\n\n\n                                                                    \n                   3439 7\/03 1.91 90   0.00 000. 9.00                          60.0\n                   602 3\/00                 00                                 0<\/span>\n                         626\/\n                   5.2.9 AM-9\n                   1     2\/RE\n\n\n\n\n                                                        \n                         P-VII\n    4.      30     P\/L\/ 03\/4 1.11. DEC. 1500 4190 1885 NIL\n                                    ig                                         1950 NIL       R4\n                   3438 7\/03 91    90   0.00 00.0 9.52                         0.00\n                   560 3\/00                  0<\/span>\n                         621\/\n                                  \n                   9.1.9 AM-9\n                   1     2\/DE\n                         C.\n                         92\/R\n                         E\n           \n\n    5.      32     P\/L\/    03\/4 25.1 DEC. 5000 1397 7333 NIL                   6500 NIL       R5\n                   3438    7\/03 0.91 90   0.00 000. 42.4                       0<\/span>\n        \n\n\n\n                   559     3\/00                00   5\n                   9.1.9   620\/\n                   1       AM-9\n                           2\/JA\n                           N-91\n\n\n\n\n\n                           \/REP\n\n\n\n\n<\/pre>\n
    36.     In the aforesaid backdrop, out of 14 applications, the petitioners claim <\/p>\n
    deserves consideration in respect of five (5) applications only.  With respect to
\n    remaining nine (9) applications, the petitioners could not co-relate their claims
\n    with   the   order   of   rejection.     In   other   words,   remaining   order   of   rejection
\n    cannot be said to be in respect of remaining (9) applications.  At any rate, fate
\n    of these nine (9) applications are not known.  It is not clear whether they were
\n    granted or rejected.\n<\/p>\n
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\n                                                      :16:<\/span><\/p>\n
    37.     Having   said   so,   now   the   question   is   whether   this   Court   should   in
\n    exercise of writ jurisdiction consider the claims of the petitioners on merits <\/p>\n
    without   remanding   matter   to   the   respondents   or   remand   them   for <\/p>\n
    consideration afresh.  Mr.Daruwala is justified in contending that if the entire
\n    files are destroyed by the respondents and if they do not have any document
\n    with them then no useful purpose would be served by remanding matter back <\/p>\n
    to the respondents for consideration afresh.  He further sought to reiterate that
\n    even before this Court, the respondent could not justify their rejection.  All the
\n    while the respondents tried to find hole in the claim of the petitioners.  Under
\n    these  circumstances, he submits that this Court should consider claim of the <\/p>\n
    petitioners without remanding the matter for consideration afresh.\n<\/p>\n
    38.<\/p>\n
            Mr.Daruwala also prayed for grant of interest, though no specific prayer <\/p>\n
    in that behalf is to be found in the petition.  However, he submits that the writ
\n    jurisdiction   of   this   Court   is   wide   enough   to   consider   his   prayer
\n    notwithstanding absence of prayer in the petition.\n<\/p>\n
    39.     Mr.Sethna countered the submissions made by Mr.Daruwala and prayed <\/p>\n
    for remand.  He also oppose grant of interest for want of prayer in that behalf.\n<\/p>\n
    40.     Having heard both of them on this aspect of the matter, we are of the <\/p>\n
    considered view that, no useful purpose would be served by remanding the
\n    matter   after   19   years.     For   want   of   documents,   there   cannot   be   a   proper
\n    consideration of claim by the respondents. The petitioners could co-relate their <\/p>\n
    five applications in relation to the orders of rejection.  In our considered view,
\n    justice would be done if claim of the petitioners vis-a-vis five applications alone
\n    is considered on its own merits.\n<\/p>\n
    41.     Let   us   consider   the   claim   of   the   petitioners   on   merits.     It   is   not   in
\n    dispute that the Government of India vide its circular dated 30th March, 1988
\n    (Exh.A)   issues   instructions   to   the   extend   demand   export   benefits   including <\/p>\n
                                                                          ::: Downloaded on – 09\/06\/2013 15:42:35 :::<\/span>
\n                                                   :17:<\/span><\/p>\n
    CCS to the supplies made by the indigenous manufacturers against the duty
\n    free licences with effect from 1.4.1988.  The supplies  made by the indigenous <\/p>\n
    manufacturers against duty free licences were held liable to claim CCS at 75% <\/p>\n
    of what is admissible to physical export and additional CCS in lieu of terminal
\n    excise duty wherever admissible.  Benefits given in the said circular came to be
\n    withdrawn by circular dated 15th July, 1991 (Exh.P) with effect from 3.7.1991.\n<\/p>\n
    It is, thus, clear that the CCS benefits to the extent of 75% of the admissible
\n    physical export were available till 3.7.1991.\n<\/p>\n
    42.     Having   said   so,   now   the   question   needs   to   be   considered   is:   as   to <\/p>\n
    whether  or not the petitioners could be said to be falling within the category <\/p>\n
    of   deemed   exporters.     The   petitioners,   on   the   basis   of   their   pleadings   (in
\n    absence of denial),   have proved that they were deemed exporters and their <\/p>\n
    part of the claim to the extent of Rs.14,57,648.02 was granted  and so far as
\n    terminal   excise   duty   is   concerned,   it   was   granted   only   in   respect   of   one
\n    application that too in the sum of Rs.1,015\/- only.  There is no denial to this <\/p>\n
    assertion.  The grant of CCS claim to the petitioners to this extent has not been
\n    denied.  It is, thus, clear that claim in respect of 22 applications made by the <\/p>\n
    petitioners   was   entertained   and   granted   by   the   Revenue.     Based   on   these
\n    proved facts, one can legitimately come to the conclusion that petitioners were
\n    entitled to claim CCS benefit and additional CCS in lieu of terminal excise duty <\/p>\n
    wherever admissible.   As already stated, the petitioners could establish their
\n    claim   vis-a-vis  5   applications   since   they  could   co-relate   their  5   applications
\n    with the order of rejection placed on record.\n<\/p>\n
    43.     The respondents could not justify destruction of record, especially, when
\n    they were served with the petition in the year 1991 and the petition was very
\n    much pending for adjudication in this Court.   For want of record, legitimate
\n    claim of the petitioner cannot be denied.\n<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 15:42:35 :::<\/span>
\n                                                   :18:<\/span><\/p>\n
    44.     The petitioners can conveniently be said to be the person falling within
\n    the   sweep  of  the   category  of  deemed   exporters.    Having  gone   through   the <\/p>\n
    circular dated 15th  July, 1991, in para-1 thereof it is clear that the scheme of <\/p>\n
    CCS has been suspended with effect from 3.7.1991.   In para-2 thereof it is
\n    abundantly   made   clear   and   clarified   that   all   exports   effected   upto   and
\n    including 2nd July, 1991 would  remain eligible for the respective rate of CCS.\n<\/p>\n
    In the circumstances, we hold that the petitioners are entitled to grant of of
\n    CCS claim to the extent of 5 applications enumerated in para- 35 (supra) to
\n    the   extent   of   Rs.3,14,620.97.     So   far   as   claim     of   additional   CCS   by   the
\n    petitioners   is   concerned,   this   Court   found   that   in   respect   of   almost   21 <\/p>\n
    applications as reflected in Exh.G, additional CCS claim of the petitioners was <\/p>\n
    denied   by  the   respondents  in  respect  of   almost  all   the   applications   barring
\n    small claim granted in the sum of Rs.1,015\/-.  In this view of the matter, we do <\/p>\n
    not think we would be justified in allowing the additional CCS claims set up by
\n    the petitioners.\n<\/p>\n
    45.     Instant case is glaring instance for culpable delay in settlement of  CCS
\n    claim due to the petitioner for which no justification was placed before us.  It <\/p>\n
    would appear from the language of Article 226 of the Constitution of India that
\n    one of the objects of Article is to enforce statutory duty and to call upon State
\n    to discharge its legal obligation.   A Writ of mandamus can be prayed for, for <\/p>\n
    enforcement of statutory duties or to compel a person holding a public office
\n    to do or forbear from doing something which is incumbent upon him to do or
\n    forbear   from   doing   under   the   provisions   of   any   law.     Assuming   that   the <\/p>\n
    respondents in the present case are public servants, it is said that the statutory
\n    duties which it is incumbent upon them to discharge are precisely the duties
\n    which are flowing from the circulars issued from time to time and  pressed into
\n    service by the petitioners.  Article 226 of the Constitution gives this Court very
\n    wide discretion in the matter of framing our writs to     suit the exigencies of
\n    particular cases, and the application of the petitioner cannot be thrown out
\n    simply on the ground that the proper writ or direction has not been prayed for <\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 15:42:35 :::<\/span>
\n                                                :19:<\/span><\/p>\n
    (See Charanjit Lal Chowdhury Vs. Union of India AIR 1951 SC 41).   Idea of
\n    grant of interest is to compensate the person for  deprivation of money.  In the <\/p>\n
    instant case, the petitioners were erroneously denied their claim to the extent <\/p>\n
    allowed in the petition.   In this view of the matter, in our considered view,
\n    petitioners would be entitled to interest @ 6% p.a. from the date of their claim
\n    set up in the petition.\n<\/p>\n
    46.     In  the   ultimate   conclusion,  we   hold  that  the  petitioners shall   not  be
\n    entitled to claim additional CCS.   However, they are entitled to claim CCS in
\n    respect of 5 applications described in para-35 (supra) quantified in the sum  of <\/p>\n
    Rs.3,14,620.97 with interest thereon @ 6% p.a. from the date of petition i.e. <\/p>\n
    1st May, 1992 till payment in full and final.\n<\/p>\n
    47.     In the result, petition is partly allowed.  Rule is made absolute in terms
\n    of this order with no order as to costs.\n<\/p>\n
    (K.K.TATED,J.)                                                         (V.C.DAGA,J.)\n     \n\n\n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 15:42:35 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Maharashtra Fur Fabrics Ltd vs Union Of India on 12 March, 2010 Bench: V.C. Daga, K. K. Tated :1: bgp 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-77785","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMaharashtra Fur Fabrics Ltd vs Union Of India on 12 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maharashtra-fur-fabrics-ltd-vs-union-of-india-on-12-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharashtra Fur Fabrics Ltd vs Union Of India on 12 March, 2010 - 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