Bombay High Court
Dgm Textiles vs Union Of India on 2 September, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
2024:BHC-OS:13582
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
PRACHI
by PRACHI WRIT PETITION (L) NO.8095 OF 2024
PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2024.09.04
DGM Textiles
11:48:08 +0530 ....Petitioner
V/s.
Union of India & Ors. ...Respondents
----
Mr. Dhiraj D. Chavan for petitioner.
Mr. Siddharth Chandrashekhar for respondents.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATE : 2nd SEPTEMBER 2024 P.C. :
1 This is a case where unfortunately a litigant has come to Court with not just unclean hands but absolutely dirtied and muddied hands. This petitioner, we find has been lying throughout before the authorities and as also before this Court by suppressing material facts. 2 Petitioner is seeking the following reliefs : -
"A. Hon'ble Court be pleased to issue: (a) Writ of Certiorari thereby quashing the Order No. 674/2023-CUS(WZ)/ASRA/Mumbai, dated 18.09.2023 issued by the Respondent No.2;
B. Hon'b1e Court be pleased to issue Writ of Certiorari thereby quashing the Order in Appeal No: MUM-CUSTM-AXP-APP-624/2020-2021 dated 24.12.2020 issued by Respondent No.3;
C. Hon'ble Court be pleased to issue Writ of Mandamus thereby directing
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the Respondent No. 2 to conduct fresh hearing on merits of Revision Application against Appeal No: MUM-CUSTM-AXP-APP-624/2020-2021 dated 24.12.2020 passed by Respondent No.3."
3 Petitioner is an exporter who had exported goods under drawback scheme as provided under Section 75 of the Customs Act, 1962 ("the said Act"). He claimed drawback for the exports made under various Shipping Bills between 1st April 2004 to 31 st December 2008. A sum of Rs.17,58,772/- was sanctioned as drawback under the Customs, Central Excise Duty and Service Tax Drawback Rules, 1995.
4 It is petitioner's case that it never received a Demand-cum- Notice dated 15th May 2010 wherein it was alleged that petitioner had not realized the foreign exchange (sale/export proceeds) in respect of the goods exported based on which the drawback was sanctioned. As per the notice, petitioner was required to show cause as to why the drawback amount availed of by petitioner be not recovered with applicable interest from petitioner.
5 It is alleged in the petition that respondent no.4 passed an order dated 3rd January 2013 ex parte without calling and perusing/ considering the relevant documents/facts/records. It is averred that petitioner never received Order-in-Original dated 3 rd January 2013 and petitioner came to know regarding Order-in-Original dated 3 rd January 2013 only in 2019 when petitioner's shipments for export were withheld ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 22:51:10 ::: ppn 3/5 8.wpl-8095.24.doc by Customs Authorities due to an Import Export Code (IEC) alert having been fed in the EDI system and whereby petitioner's bank accounts were also freezed upon the instructions from the Tax Recovery Cell (Export) Section of the Customs Department.
6 It is averred in the petition that petitioner was shocked to know that the Order-in-Original has been passed by the Adjudicating Authority- Respondent no.4 against it in an ex parte manner. Petitioner therefore, filed an appeal under Section 128A of the Act before respondent no.3. The said appeal came to be dismissed vide order dated 24 th December 2020. It is stated that the order came to be dismissed on the ground of limitation without appreciating the merit of the case. Against the said order, petitioner preferred a revision application before respondent no.2 which also came to be dismissed by an order dated 18 th September 2023. All these three orders are impugned in this petition.
7 In all these three orders, it has been emphasized that petitioner has been lying and the stand taken by petitioner consistently before the three authorities, i.e., respondent no.2, respondent no.3 and respondent no.4, and even before us, is that petitioner had no idea whatsoever of any adjudication proceedings. In all the three orders, there is reference to a letter dated 19th November 2012 from petitioner, in response to a personal hearing intimation dated 19th October 2012, by which petitioner had stated ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 22:51:10 ::: ppn 4/5 8.wpl-8095.24.doc that the relevant documents would be submitted within one month and petitioner failed to do so.
8 We find that there is not even an attempt to explain the situation in this petition. There is no reference at all to this communication dated 19th November 2012 by petitioner or to the notice of personal hearing dated 19th October 2012. If petitioner had not addressed the said letter dated 19th November 2012, we are certain that would have been so stated in the petition. In the circumstances, we are satisfied that the attempt of petitioner is not only to hide truth from the Authorities but also to obtain orders from this Court by suppressing material facts. 9 In these circumstances, we are not inclined to exercise our jurisdiction under Article 226 of the Constitution of India. 10 It is settled law that any party approaching this Court should come with clean hands and as noted hereinabove, petitioner's hands are absolutely muddied. Mr. Chandrashekhar is justified in saying that this is a fit case that the Court should not only dismiss the petition but impose substantial cost so that nobody would try to take a chance and then obtain orders from the Court by suppressing material facts.
11 It will be apposite to reproduce paragraph 27 of the Judgment
of this Court in KML Estates Pvt. Ltd. Vs. Zarine D'Monte & Ors. 1 as
1 2023 SCC OnLine Bom 558
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under :-
"27. In our view, this appeal has to be allowed. In our opinion, the said respondents, who are plaintiffs in the suit, should have come to the Court with clean hands. The observations of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath (Dead) by LRS. (supra), that was relied upon by Mr. Dada, are relevant in this context. The Court observed :
"The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands ....... We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
12 Therefore, petition dismissed with cost in the sum of Rs. 5 lakhs that petitioner shall pay to Commissioner of Customs, Mumbai. If this amount is not paid within two weeks and compliance affidavit filed, respondents may recover this amount with @18% p.a. interest thereon from the date hereof together with the amount recoverable under the order-in-original passed on 3rd January 2013.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
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