ifb Industries Ltd. Vs. Union of India (Uoi)

ifb Industries Ltd. vs Union of India (Uoi)

Type Court Judgment Court Mumbai Decided Nov 06, 2006

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Citation: sooperkanoon.com/366708
Court: Mumbai High Court
Judge: J.N. Patel and; N.A. Britto, JJ.
Decided On: Nov 06, 2006
Case Number: Writ Petition No. 398 of 2006
Subject: Customs

Case Summary

AI-generated summary - not the official court judgment text.

- Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for...

Key legal issue: Customs
Acts & sections: Customs and Central Excise Duties Drawback Rules, 1995 - Rule 6(1)

Parties & Advocates

Appellant / Petitioner

ifb Industries Ltd.

Advocate H.K. Maingi, Adv.

Respondent

Union of India (Uoi)

Advocate Joseph Vaz, C.G.S.C.

Legal References

Acts: Customs and Central Excise Duties Drawback Rules, 1995 - Rule 6(1)
Reported In: 2007(211)ELT366(Bom)

Excerpt

.....reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in..........purpose of disposing of this petition.2. the subject matter of the petitidon pertains to the rejection of the application filed by the petitioners seeking condonation of delay in filing application for fixation of brand rate of duty drawback under rule 6(1)(a) of the customs and central excise duties drawback rules, 1995. the main contention of the petitioners is that the respondent no. 2 being the competent authority is vested with the powers to condone the delay in filing application and inspite of such application being made without giving an opportunity to the petitioners, respondent no. 4 has passed the impugned order by letter dated 20-6-2006 annexed to the petition at exh. 'h'. it is submitted that an application for fixation of brand rate of duty drawback has to be preferred within 90 days from the date of rejection of the application for drawback under section 75.3. it is contended oh behalf of the petitioners that the petitioners having been informed that they are not entitled to apply for the drawback the petitioners have applied under section 75 and that the competent authority has powers to condone the delay. it is submitted that rejecting the application of the petitioners for condonation of delay without giving them an opportunity of hearing and further by passing a non-speaking order, has occasioned in causing injustice to the petitioners and, therefore, the impugned order deserves to be quashed and set aside with a direction to the competent authority to consider the application of the petitioners for condonation of delay after giving them due opportunity of hearing and dispose of the same by passing a speaking order.4. the learned central government standing counsel appearing for the respondent nos. 1, 3, 4 and 5 submits that if this court so directs, the competent authority would hear the petitioners on their application afresh for condonation of delay and pass appropriate orders in the course of time.5. we, therefore, allow the petition in.....

Full Judgment

ORDER

1. Heard. As the petition can be disposed of at the stage of admission itself, as far as respondent No. 2 is concerned being a formal party he need not be served for the purpose of disposing of this petition.

2. The subject matter of the petitidon pertains to the rejection of the application filed by the petitioners seeking condonation of delay in filing application for fixation of Brand Rate of duty drawback under Rule 6(1)(a) of the Customs and Central Excise Duties Drawback Rules, 1995. The main contention of the petitioners is that the respondent No. 2 being the competent authority is vested with the powers to condone the delay in filing application and inspite of such application being made without giving an opportunity to the petitioners, respondent No. 4 has passed the impugned Order by letter dated 20-6-2006 annexed to the petition at Exh. 'H'. It is submitted that an application for fixation of Brand Rate of duty drawback has to be preferred within 90 days from the date of rejection of the application for drawback under Section 75.

3. It is contended oh behalf of the petitioners that the petitioners having been informed that they are not entitled to apply for the drawback the petitioners have applied under Section 75 and that the competent authority has powers to condone the delay. It is submitted that rejecting the application of the petitioners for condonation of delay without giving them an opportunity of hearing and further by passing a non-speaking order, has occasioned in causing injustice to the petitioners and, therefore, the impugned Order deserves to be quashed and set aside with a direction to the competent authority to consider the application of the petitioners for condonation of delay after giving them due opportunity of hearing and dispose of the same by passing a speaking order.

4. The learned Central Government Standing Counsel appearing for the respondent Nos. 1, 3, 4 and 5 submits that if this Court so directs, the competent authority would hear the petitioners on their application afresh for condonation of delay and pass appropriate orders in the course of time.

5. We, therefore, allow the petition in terms of prayer Clause (b) which reacts hereunder:

In the alternative this Honourable Court may be pleased to set aside the order conveying rejection of the petitioners' request for condonation of delay and direct the competent authority by a writ of mandamus or any other writ or direction or order to hear and decide such request afresh after granting a personal hearing.

6. We will highly appreciate if the competent authority disposes of the application for condonation of delay within a period of three months from the date of receipt of the certified copy of our order.

7. The petition stands disposed of accordingly.

Same Court & Year Mumbai · 2006 Same Parties ifb Industries Ltd. vs Union of India (Uoi) Same Subject Customs Same Judge J.N. Patel and; N.A. Britto, JJ. Acts & Sections Customs and Central Excise Duties Drawback Rules, 1995 - Rule...

Customs