M/S. Bharat Plywood & Timber Products (P) Ltd. Baliapatam, Kannur v. Customs, Excise & Service Tax Appellate Tribunal, West Block-2, RK Puram, New Delhi; and Union of India (and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936** ## **WP(C).No. 678 of 2014 (H)** ## **--------------------------** ## **PETITIONER(S) :** **--------------------------** **1. M/S. BHARAT PLYWOOD & TIMBER PRODUCTS (P) LTD. BALIAPATTAM, KANNUR** **REPRESENTED BY ITS MANAGING DIRECTOR T.V. ISMAIL HAJEE.** **2. T.V. ISMAIL HAJEE, AGED ABOUT 70 YEARS S/O. MOHAMMED, MANAGING DIRECTOR M/S. BHARAT PLYWOOD & TIMBER PRODUCTS (P) LTD. BALIAPATTAM, KANNUR-670010.** **BY SENIOR ADVOCATE SRI.M.RAMESH CHANDER BY ADVS.SRI.P.K.RAVI KRISHNAN SMT.DENNIS VARGHESE** **RESPONDENT(S) :** - **----------------------------** ## **1. CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL** - **WEST BLOCK-2, R.K. PURAM, NEW DELHI-66 REPRESETNED BY ITS ASSISTANT REGISTRAR.** **2. CUSTOMS EXCISE & GOLD (CONTROL) APPELLATE TRIBUNAL, SOUTH REGIONAL BENCH AT MADRAS.** **3. CHIEF COMMISSIONER OF CENTRAL EXCISE ERNAKULAM, KERALA.** **4. DEPUTY COMMISSIONER OF CENTRAL EXCISE, KANNUR DIVISION, KUZHIKUNNU, KANNUR-670001.** **5. ASSISTANT COMMISSIONER OF CENTRAL EXCISE KANNUR DIVISION, KUZHIKUNNU, KANNUR-670001.** **6. UNION OF INDIA** - **REPRESENTED BY SECRETARY TO MINISTRY OF FINANCE NEW DELHI.** **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 678 of 2014 (H)** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **EXT. P1. PHOTOSTAT COPY OF ORDER NO. 286/1994 IN E/SB/847 TO 849/89 AND E/SB/1345/89/MAS. EXT. P2. PHOTOSTAT COPY OF THE REPLY DATED 8-8-2008. EXT. P3. PHOTOSTAT COPY OF THE APPLICATION BEFORE THE REGISTRAR ON 21-6-2012. EXT. P4. THE PHOTOSTAT COPY OF THE APPLICATION BEFORE THE CHIEF COMMISSIONER OF CENTRAL EXCISE, ERNAKULAM ON 9-10-2012. EXT. P5. A PHOTOSTAT COPY OF THE APPLICATION BEFORE THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, KANNUR DIVISION, KANNUR DATED 17-10-2012. EXT. P6. PHOTOSTAT COPY OF THE ORDER DATED 4-10-2012 ISSUED BY 5TH RESPONDENT.** **EXT. P7. PHOTOSTAT COPY OF THE NOTICE OF DEMAND DATED 31-12-13 ISSUED BY 4TH RESPONDENT.** **RESPONDENT(S)' EXHIBITS : NIL** **------------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.P(C) No. 678 of 2014 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 12[th] day of June, 2014. ## J U D G M E N T This writ petition is filed seeking for a direction to quash Ext. P7 demand notice and to compel the respondents to hear the appeals preferred by 1[st] petitioner bearing No. E/SB/ROA/463 to 466/94/MAS in E/SB/847 to 849 and E/SB/1345/89/MAS issued by the 4[th] respondent, giving opportunity to the petitioners. 2. The facts involved in the case would show that a demand was made for an amount of Rs. 65,89,432.67 from the 1[st] petitioner-Company while the same was being managed by an earlier group. An appeal was filed before the Tribunal at Chennai and as per order dated 3.7.1989, copy of which is produced as Ext. P1, stay was granted on condition of pre-deposit of Rs. 6,50,000/- on or before 16.10.1989. It is stated that pre-deposit was made as evident from Ext. P1. It was indicated in Ext. P1 that the matter is to be transferred to CEGAT, New Delhi. According to the petitioners, thereafter, there was no information and when an application was made under the Right to Information Act, Ext. P2 reply was received on 8.8.2008 stating that due to renovation work, many registers have been misplaced and the status of the appeal could not be traced. According to the petitioners, the appeal is still W.P(C) No. 678 of 2014 -: 2 :- pending and had not been disposed of so far. Another request was made on 2.6.2012 before the Commissioner of Central Excise to know the status of the appeal. Exts. P3, P4 and P5 are the said requests and the petitioners did not receive any reply. It is further indicated that so far, the appeal has not been disposed of. However, the 5[th] respondent, by communication dated 4.10.2012, informed the petitioner that since the proceedings have not been disposed of within the period stipulated under Section 35C(2A) of the Central Excise Act, 1994, the stay order stands vacated. Ext. P6 is the said order. Thereupon, the Deputy Commissioner has issued an order that unless an amount of Rs. 71,42,980/- is paid within 7 days, action would be initiated for recovery of the amount. Ext. P7 is the said demand. Under these circumstances, the petitioners have approached this Court. 3. Counter affidavit is filed on behalf of respondents 3 to 6 inter alia admitting the fact that with reference to the appeal pending before CESTAT, New Delhi, it was revealed that appeal papers are not traceable. According to them, total arrears pending is Rs. 71,42,980/- and since the appeal is not disposed of within the specified time, they are entitled to recover W.P(C) No. 678 of 2014 -: 3 :- the amount. They have also indicated that the files were not returned from New Delhi Office. 4. Having regard to these factual situation, it is an admitted fact that the appeal filed by the 1[st] petitioner has not been disposed of so far. It is either to be heard by the 1[st] respondent or the 2[nd] respondent, as the case may be, depending upon the present jurisdiction vested in it. Learned counsel for the petitioners brought to my notice a judgment of this Court in **Kunhu Moideen v. Narayanan Adiyodi** , 1987 KLJ 1245. That is a case in which this Court observed that inherent powers of the civil court under Section 151 of Code of Civil Procedure, 1908 can be invoked for re-constructing records, which has been lost or destroyed. 5. On the other hand, learned counsel for the respondents relied upon the judgment of the Supreme Court in **Commissioner of Customs & C. Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd** ., 2005 (180) E.L.T. 434 (S.C) to contend that though the Tribunal has the power to extend the stay beyond the period of six months, statutory provision clearly indicates that if the appeal is not disposed of within the time specified, the stay order shall, on the expiry of that period, stand vacated in terms of the statutory W.P(C) No. 678 of 2014 -: 4 :- provision under Section 35C(2A) of the Central Excise Act. 6. Having regard to the factual issues, the only question to be considered is as to how the records relating to he above case can be reconstructed and what further directions can be given in favour of the petitioner. 7. Apparently, reference to Ext. P1 would show that the 1[st] petitioner had preferred an appeal and an interim order had been passed. The appeal being a special bench appeal, there was a direction to transfer the same to CEGAT, New Delhi. Stay was also granted pending disposal of the appeal. There is no material to indicate that the appeal has been disposed of so far. Ext. P2, an answer to the query under the Right to Information Act, indicates that the Assistant Registrar of the 1[st] respondent Tribunal has informed that the status of the special appeal could not be traced out and efforts were taken to trace the relevant records and registers and that after the records are traced out, the status of the appeal will be intimated. Ext. P2 communication is dated 8.8.2008. 8. In the meantime, the petitioner is faced with Exts. P6 and P7. By Ext. P6, the Assistant Commissioner of Central Excise has informed that the W.P(C) No. 678 of 2014 -: 5 :- stay is automatically vacated on account of the provisions under Section 35C(2A) and that the appeal has been registered on 24.7.1997 and has been transferred to SRB, Chennai. 9. The fact remains that so far the abovementioned appeal has not been decided by any of the authorities. As matters stand now, Ext. P2 is the last communication by which the petitioner was informed that the records are not available. Under such circumstances, it is necessary in the interest of justice that the records are re-constructed and for that purpose, the petitioners as well as respondent authorities shall make necessary arrangement for production of copies of the available records, ie. memorandum of appeal as well as connected records and the 1[st] respondent has to consider the matter and pass appropriate orders in accordance with law. Until such time, recovery pursuant to Ext. P7 has to be kept in abeyance. 10. In the said circumstances, this writ petition is disposed of as under: (1) Petitioners as well as respondents 3 to 5 shall place all records relating to the appeal referred to in Exts. P1 and P2 before the 1[st] respondent within a period of one month from W.P(C) No. 678 of 2014 -: 6 :- the date of receipt of copy of this judgment with notice to either parties. (2) The 1[st] respondent shall re-construct the case records relating to the aforesaid appeal and shall consider and dispose of the same within a further period of 6 months. (3) Until disposal of the appeal, recovery of amounts pursuant to Ext. P7 shall be kept in abeyance. Sd/- A.M. Shaffique, Judge. Tds/