LexM/S. ALEX ENTERPRISES & ANR. versus UNION OF INDIA & ORS.
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[2009] 4 S.C.R. 925 l M/S. ALEX ENTERPRISES & ANR. A , v. ' UNION OF INDIA & ORS . . Civil Appeal No. 947 of 2004 MARCH 5, 2009 B [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.] • .;.· Customs Act, 1962/Customs and Duty Drawback Rules, 1995 - s. 75 rr 16 and 16 A - Recovery of Drawback with c penalty- Export of goods under the claim of Duty Drawback - Auction of the goods by port authorities, as the same not cleared by consignee - No realization of export proceeds by the nodal Bank - Exporter admitted to have obtained Duty Drawback fraudulently-Arrest of exporter- Notice by Customs .. Authorities seeking recovery of Drawback amount with penalty D - Demand confirmed - Appeal before Tribunal - Tribunal directing the exporter to pre-deposit the Duty Drawback by a particular date - Order of pre-deposit challenged before High Court - High Court extending the time for pre-deposit - Further applications for extension of time - Tribunal dismissing the E application seeking to dispense with the requirement of pre- • deposit, ex-parte - Writ petition seeking restoration of appeal, dismissed - Further writ petition seeking quashing of entire ' subsequent proceedings dismissed upto Supreme Court - Appeal against order of Tribunal directing pre-deposit and F dismissing the appeal - Held: In view of the fact that the exporter adopted various dilatory methods, ·not entitled to any relief - The appeal is an abuse of process of Law - > Administration of Justice - Abuse of process of Law. \, CIVILAPPELLATE JURISDICTION: Civil Appeal No. 947 G ~ .. of 2004 From the Judgement and Order dated 29.04.2002 & 07.10.2002 of the Custom, Excise & Gold (Control) Appellate 925 H 926 SUPREME COURT REPORTS [2009] 4 S.C.R. A ' Tribunal, New Delhi in A.No. C/153/02-D vide order No. S/101/ I 02-D and M/19/02-D and 243/02-D. ,- ; Sunil K. Tekriwal, V.N. Raghupathy, for the Appellants. Mohan Parasaran, ASG, C.V.S. Rao, Kul Bharat, Anil B Katiyar, B. Krishna Prasad, for the Respondent. The Judgement of the Court was delivered by DR. ARIJIT PASAYAT, J. c 1. Challenge in this appeal is to the judgment of the Customs Excise and Gold Control Appellate Tribunal, New Delhi (in short the 'CEGAT'). By the impugned order the application filed by appellants seeking waiver of the pre deposit of duty amount of Rs.42,90,226/- and penalty of Rs.20,00,000/- confirmed by the Commissioner of Customs. The High Court D directed deposit of Rs.42,00,000/- on or before 30.7.2002. Since the amount was not deposited by order dated 7.10.2002, the appeal was dismissed. - 2. Learned counsel for the appellant submitted that the E CEGAT did not consider the various questions in its proper perspective. The appellant was entitled to the benefits of Rule 16(a) of the Customs and Central Excise Duties Drawback Rules, 1995 (in short the 'Rules') and, therefore, the direction • given by the CEGAT was not in order. ;jj F 3. Learned counsel for the respondent on the other hand submitted that the appellants have been adopting various dilatory methods and have dragged on the whole matter for nearly eight years and no interference is called for in a matter of this nature. 4. A brief reference to the factual scenario needs to be ,_ G noted. The Tribunal noted with reference to the orders passed " by the departmental authorities that the position was as follows: .... "The perusal of the impugned order shows that the recovery of Rs.42,90,226/- had been ordered to be made from the appellants as they wrongly got this amount as draw back H on the basis of 11 shipping bills vide which the export M/S. ALEX E;NTERPRISES & ANR. V 927 UNION OF INDIA & ORS. [DR. ARIJIT PASAYAT, J.] J consignments valued at Rs.2,54,30,211/- were sent by A them, but the sale proceeds of those consignments have not been so far realiied by or on behalf of the appellants in India, within the perio<;l allowed under the Foreign Exchange Regulation Act. Therl?lfore they wern c:isked to pay back the amount of the draw back un.der Section 142 B of the Customs Act. The learned counsel has not contested the correctness of the impugned order on merits on ~my ' material on record. Hfil has admitteq that the sale proqeeds -" of the consignment had not been repatriated in India so far and that the appellants had availed the drawback of c the disputed amount. Th@refgre, prima facie, we do not fine any case in favour of the appe
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