* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.10314 of 2011 %Dated:02.11.2011 Between: M/s.Vinyllora Industries Private Limited. …Petitioner and The Commissioner (Appeals) – III Customs, Central Excise & Service Tax, 7th Floor, Kendriya Shulk Bhavan, L.B.Stadium Road, Basheerbagh, Hyderabad – 500 004, And others. …Respondents ! Counsel for the Petitioner: Sri G.Mohan Rao ^Counsel for the Respondents: Sri A.Rajasekhar Reddy, Senior Standing Counsel for Central Excise and Customs. <Gist: >Head Note: ?Citations: 1. 2009 (242) ELT 340 (AP) : 2009 (3) ALD 8 (DB) THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.10314 of 2011 Dated:02.11.2011 Between: M/s.Vinyllora Industries Private Limited. …Petitioner And The Commissioner (Appeals) – III Customs, Central Excise & Service Tax, 7th Floor, Kendriya Shulk Bhavan, L.B.Stadium Road, Basheerbagh, Hyderabad – 500 004, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.10314 of 2011 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) It is not very often we are called upon to adjudicate a rare case of this nature in which the petitioner company, an assessee under the Central Excise Act, 1944 (hereafter, the Act), seeks redressal by way of a mandamus declaring the action of the third respondent in encashing the Bank Guarantee (BG) given by the petitioner in 1978 – which stood extended from time to time – even while the petitioner’s appeal filed about three decades ago is still pending with the first respondent, as arbitrary and illegal. The shocking state of affairs notwithstanding dispassion calls for an impartial consideration of the short issue that falls for consideration in the background of the following short facts, which are not seriously in dispute. The brief fact of the matter is that the petitioner at the relevant time in 1970s was a manufacturer of PVC cloth (cotton fabrics). He was paying excise duty. In 1973 – 1974, he claimed certain discounts – quantity discounts, packing charges and forwarding & handling charges, in respect of consignment to M/s.General Plastics and Leather Company, Secunderabad, and M/s.Vasundhara Plastic Corporation, Madras. The third respondent, the jurisdictional assessment officer, however, passed an order on 31.01.1978 disallowing the discounts claimed by the petitioner. The petitioner filed an appeal under Section 35 of the Act before the first respondent, who was at the relevant time stationed at Chennai, exercising territorial jurisdiction over Andhra Pradesh, Kerala and Tamil Nadu. Pending the appeal, the petitioner sought stay of the collection of duties. The first respondent passed orders on 31.07.1978 staying the collection of duty on condition of the petitioner furnishing BG for an amount of Rs.65,800/-. The petitioner complied with the same. He also executed general security bond for an amount of Rs.1,00,000/- and Rs.40,000/- supported by a BG of Rs.25,000/- and Rs.10,000/- respectively to cover the provisional assessment order of the third respondent. Thereafter, with or without any official reminders, the petitioner extended the validity of the BG till 2009. The appeal was, however, not disposed of. It is still pending even after about thirty three years. The issue is, however, not only regarding the pendency of the appeal before the first respondent which itself is cause for concern. In 2009, precisely on 08.08.2009, the third respondent addressed the petitioner advising to extend the BGs and communicate the same to him by 24.08.2009. The petitioner immediately responded by sending a letter on 21.08.2009 requesting the third respondent not to encash BGs during the pendency of the appeal. Nevertheless, ignoring the request, the third respondent encashed the BG on 25.08.2009. Even thereafter, the appeal was not disposed of. The petitioner’s attempts to get the status quo ante restored with reference to BG failed. He, therefore, filed the instant writ petition seeking for a writ of mandamus for declaration and direction to the respondents to refund Rs.1,00,800/- which was realized by encashing the BG. At the preliminary stage itself the respondents through the Commissioner of Excise have filed counter affidavit. The pendency of the appeal and encashment of BG are admitted. But, the respondents disown the responsibility for the abnormal delay in disposing of the appeal of 1978. An attempt is made to throw the blame on the petitioner by stating that “…the petitioner having filed appeal and executed BG … could have pursued the matter with the then Collector (Appeals) located at Chennai instead of waiting for 30 years while renewing the BGs all through till 06.09.2009…”. The petitioner filed reply affidavit asserting that the petitioner cannot be blamed if the records were transferred to Chennai; and as a result of reorganization if the records are not available at Hyderabad. After hearing the Counsel for the petitioner and the Senior Standing Counsel for Central Excise and Customs, who reiterated their position, the two issues we are called upon to address in this petition are taken up for consideration infra one after the other. Disposal of the appeal A lengthy argument nor elaborate reasoning is required to condemn the attitude of any quasi judicial appellate authority sitting over in a statutory appeal for thirty years and take a plea that the appellant could have pursued the matter in right earnest. The power conferred to decide appeals casts a duty on the designated authority to dispose of appeals expeditiously. Indeed, Section 35A(4A) of the Act as amended by the Finance Act, 2001, requires the Commissioner (Appeals) to dispose of appeal within a period of six months from the date on which it is filed and Section 35(1A) of the Act as amended by the Finance Act, 2004, restricts the power of the appellate Commissioner to adjourn the hearing of appeal more than three times. These provisions appear to have been ignored. The adage that delay denies justice is equally applicable to the quasi-judicial proceedings. Therefore, without further adding anything, we deem it proper to direct the first respondent to dispose of the petitioner’s appeal filed in July 1978 against the order of the third respondent dated 31.01.1978 within a period of two weeks from the date of receipt of a copy of this order. While directing expeditious disposal of the appeal, we cannot ignore the realities. Statedly, the petitioner’s Counsel passed away and his office was burnt in a fire accident. The respondents say that the Chennai establishment has not transferred the records and the appeal papers as well as the memorandum of grounds are not available with them. What is that a Court of judicial review can do in such a situation? ‘Ex debito justitiae’ we observe that the petitioner may now furnish a memorandum of grounds, which shall be treated as the one filed in 1978. It shall be open to the petitioner to place all other available material from his office files and approach the first respondent immediately with a copy of this order. Refund of encashed BG The order of the first respondent in Appeal No.CX/6/78(H), dated 19.08.1978, while directing stay of proceedings on condition of furnishing BG would show that the said order was passed with a view that the appeal itself could be heard and disposed of promptly. A direction to the petitioner to furnish BG was issued in the interests of the revenue during the pendency of the appeal. When the appeal is pending and the BG is encashed by the third respondent even without allowing sufficient time to the petitioner to renew it, it is not only palpably arbitrary but ex facie capricious. When the BG is encashed illegally by public authority, in our considered opinion, the person who furnished the BG is entitled to seek restitution. The power to order restitution is inherent power and cannot be denied to the Court of judicial review. A Division Bench of this Court comprising one of us (SK, J) in M/s.Lanco Kondapalli Power Private Ltd. v Union of India[1] considered this aspect and observed as under. The learned Assistant Solicitor General for India drew our attention to the Judgment of a Division Bench of Bombay High Court in UNION OF INDIA v. DABHOL POWER Co. (2006 (199) ELT 782 (Bom)) wherein the Court permitted encashment of Bank Guarantees by way of interim relief to protect the interests of the Revenue. However, a reading of the Judgment of the Bombay High Court would show that it turned upon the peculiar facts of the case and did not lay down any principle or ratio of binding effect. We are not inclined to accept the argument of the learned Assistant Solicitor General for India that the refund of the amount encashed under the petitioner’s Bank Guarantee should not be ordered so as to protect the interest of the Revenue. Such encashment was demonstrably in violation of the binding circulars issued by the Central Board and it would be putting a premium on this illegality to allow the Customs authorities to retain the amount unlawfully appropriated by them through this illegal action. Not to order refund of the amount due to encashment of BG even while the appeal of the petitioner is pending, in our considered opinion, amounts to adding insult to injury. There cannot be premium for the default of the public authority who, in law, is bound to dispose of the appeals within a reasonable time. Keeping the appeal pending for over a period of thirty three years can by no stretch of imagination is reasonable. Therefore, we are inclined to direct the respondents to refund the amount of Rs.1,00,800/- which was realized by the third respondent by encashing BGs. Needless to mention, the petitioner would also be entitled to the interest from the date of encashment. The payment of interest amount shall be as per Section 11BB of the Act. As the petitioner has already furnished the General Security Bond, the same shall be in force and shall abide by the final result of the first respondent in the appeal. The writ petition shall stand allowed accordingly with costs. _______________ (V.V.S.RAO, J) _____________________ (SANJAY KUMAR, J) 02.11.2011 Note: LR Copy to be marked. B/o. vs [1] 2009 (242) ELT 340 (AP) : 2009 (3) ALD 8 (DB)