IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10671 of 2010 ========================================== SHREE BAIDYANATH AYURVED BHAWAN PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT 1, GUPTA LANE, KOLKATA-700006 THROUGH ITS FACTORY MANAGER SHRI L.K. CHOUDHARY, S/O LATE BINDESHWARI PRASAD CHOUDHARY, R/O BAIDYANATH BHAWAN ROAD, P.S.- JAKKANPUR, DISTT.- PATNA Versus 1. UNION OF INDIA THROUGH THE COMMISSIONER CENTRAL EXCISE & SERVICE TAX DIVISION, PATNA 2. THE COMMISSIONER CENTRAL EXCISE & SERVICE TAX DIVISION, PATNA 3. THE ASSISTANT COMMISSIONER, CENTRAL EXCISE & SERVICE TAX DIVISION, PATNA =========================================== Appearance: For the Petitioner: Mr. SATYABIR BHARTI For the Respondent: MRS.ARCHANA MEENAKSHI =========================================== CORAM:HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE MR. JUSTICE JYOTI SARAN) 3. 29.9.2010. With the consent of the parties this writ petition has been taken up for hearing on merits and final disposal at the stage of admission itself. Heard Mr. Satyabir Bharti, learned counsel appearing on behalf of the petitioner and Mrs. Archana Meenakshee, learned counsel representing the Union of India and its authorities. This writ petition is a manifestation of an 2 extremely ambitious exercise of a quasi judicial powers by an adjudicatory authority respondent no. 3, the Assistant Commissioner, Central Excise and Service Tax Division, Patna. Shorn of unnecessary details, the facts relevant for disposal of the writ petition is that the petitioner is an existing company within the meaning of the Companies Act, 1956 engaged in the business of manufacture of ayurvedic medicines. One of such medicine being manufactured by the petitioner is marketed in the name of “Dant Manjan Lal”. The petitioner was served with a demand-cum show cause notice dated 16.7.1981 (Annexure-1) issued by the Assistant Collector (Preventive), Central Excise, Patna requiring him to show cause as to why an amount of Rs. 18,86,122/- be not recovered and penalty be not imposed under the provisions of the Central Excise Act, 1944 (hereinafter referred to as the Act) and the rules framed thereunder. The said demand was confirmed on 26.8.1982. The petitioner preferred an appeal before the Custom, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal), New Delhi giving rise to Appeal No. ED (SB) 248 of 1982. The appeal preferred by the petitioner was disposed of by the Tribunal in the following terms: “In view of our findings above, we order that M/s Shree Baidyanath Ayurved Bhawan Limited, Patna shall only pay the duty on clearances on the product „Dant Manjan Lal‟ effected by them during the period of six months prior to the issue of the show cause 3 notice dated 16th July, 1981 under Section 11-A of the Central Excises & Salt Act, 1944. The penalty amount of Rs. 10,000/- is waived.” Thus the liability of the petitioner was restricted only to a period of six months prior to the date of issuance of the show cause-cum-demand notice as contained in Annexure-1. The writ petitioner not being satisfied with the order of the Tribunal, preferred an appeal before the Supreme Court and by order dated 20.3.1986, the petitioner was directed to deposit a sum of Rs. 15 lacs with a further direction to keep alive the bank guarantee of Rs. 18,86,122/- subject to a further stipulation that an interest at the rate of 12 per cent per annum would be payable on the balance amount of excise duty in case the appeal fails and likewise the petitioner would be entitled to a refund of the excess amount of excise duty at the same rate of 12 per cent per annum. Copy of the interim order of the Supreme Court is placed at Annexure-A to the counter affidavit filed on behalf of the respondent-Union of India. The petitioner in compliance of the directions of the Supreme Court deposited the amount of Rs. 15 lacs in the treasury. The appeal preferred by the petitioner was dismissed by the Supreme Court by order dated 30.3.1995 upholding the order passed by the Tribunal as contained in Annexure-2 to the petition and thus confirming the liability of the petitioner to pay duty on „Dant Manjan Lal‟ as determined by the Tribunal. 4 In normal course, on an application filed by the petitioner for determination of his dues in terms of the order passed by the Tribunal read with the order dated 20.3.1986 of the Supreme Court, the appropriate authority that is the respondent no. 3 would take appropriate steps for determination thereof and either issue orders of refund or issue a demand notice in accordance with the directions of the Supreme Court as the case may be. But this was not to be and the application filed by the petitioner dated 26.6.1996 for refund of the excess amount along with interest in terms of the direction of the Supreme Court was rejected by the Assistant Commissioner- respondent no. 3 by order dated 30.9.1997. The petitioner unnecessarily was subjected to a 2nd round litigation of filing an appeal before the Commissioner (Appeals) and who naturally set aside the order passed by the Assistant Commissioner and directed for refund of the deposit in the light of the Supreme Court order. The order of the Commissioner (Appeals) dated 24.12.2007 as found at Annexure-3 to the writ petition was challenged by the Revenue in appeal before the Tribunal which was disposed of by order dated 7.5.2008 (Annexure-4) with directions to the original authority to take steps for determination of the liability/refund in terms of the Supreme Court order. The petitioner again filed an application for refund before the respondent no. 3 on 4.8.2008 in the light of the order passed by the Tribunal which again was rejected by the respondent no. 3 5 by order dated 26.12.2008 on frivolous grounds of non- production of relevant records. The petitioner for the third time was relegated to seeking statutory remedies and the appeal filed by the petitioner was allowed by the Commissioner (Appeals) dated 16.12.2009 directing the Assistant Commissioner to make the refund together with interest as per the direction of the Supreme Court. Copy of the order is placed at Annexure-7. The petitioner filed a fresh application together with details on 24.3.2010 and which has since been disposed of by the impugned order dated 24.5.2010 circulated vide Memo dated 25.5.2010 as contained in Annexure-9 to the writ petition. The respondent Assistant Commissioner was yet not ready to admit that the petitioner was entitled to any refund. As the intent of the Respondent no. 3 was to deny refund to the petitioner, he resorted to a novel method of determination of the liability of the petitioner. The excise duty liability was determined at Rs. 3,34,958.50. What the respondent no. 3 Assistant Commissioner has thereafter done is that he has calculated interest @ 12 % per annum in terms of the Supreme Court order on the liability right since the date it became due until the passing of the order by the Supreme Court and thereafter at the rate notified in the notification of the department, until the passing of the impugned order on 24.5.2010. A plain reading of the calculation chart which is a part of the impugned order makes itself eloquent that the same is 6 infested with malafide exercise of power. The liability of the petitioner was quantified at Rs. 3.34,958.50 for the period January, 1981 to April, 1981 in terms of the order of the Tribunal as contained in Annexure-2. The liability having been determined, the petitioner became liable to pay interest at the rate of 12 per cent per annum in terms of the Supreme Court order from the date the demand was raised i.e. 16.7.1981 until the date on which he made the deposit of Rs. 15 lacs under the order of the Supreme Court which was deposited in installments on 26.6.1986 and 29.9.1986. Even going by the latter of the two dates, the petitioner would become liable for payment of interest on the liability determined with effect from 16.7.1981 until 21.9.1986 at the rate of 12 per cent per annum on such determination. The interest amount for the said period would be on or around Rs. 2,07,680/- approximately. Adding the liability thereon, the amount would be on or about Rs.5,42,638/-. In stead the respondent no. 3 had made a rather ingenious calculation of the interest. The delay caused by him in determining the dues and determining the liability in terms of the Tribunal's order was shifted on to the petitioner and the respondent no. 3, at the first instance, calculated interest @ 12 % per annum for the period 1.4.1986 to 25.5.1995 being the date of the order of dismissal of the appeal of the petitioner by the Supreme Court. He then calculated interest at the rate of 20 per cent for the period thereafter from 26.5.1995 until 1.3.2000 7 in terms of a Notification dated 29.5.1995. Thereafter he calculated interest at the rate of 24 per cent for the period 1.3.2000 to 11.5.2000 in terms of a Notification dated 1.3.2000 which was followed by a calculation of interest at the rate of 15 per cent under a Notification dated 12.5.2000 for the period 12.5.2000 to 12.5.2002 finally to culminate in calculation of interest in terms of a notification without any date at the rate of 13 per cent for the period 13.5.2002 until the passing of the order impugned dated 24.5.2010. He thus calculated an interest of Rs. 12,20,836.54/- and added thereon the liability determined at Rs. 3,34,958.50, calculating the final liability of the petitioner at Rs. 15,55,795.04. As the petitioner had made a deposit of Rs. 15 lacs in terms of the Supreme Court order, hence the respondent no. 3 being gracious enough adjusted the said amount and determined a balance outstanding of Rs.55,795/04 to be deposited by the petitioner under the order impugned. The exercise undertaken by the respondent no. 3 to determine the liability of the petitioner is preposterous to say the least. Either the respondent no. 3 is not fully conversant with the legal work and the duties and responsibilities as attached to a post requiring performance of quasi judicial functions or he is mesmerized by his position. Considering the rigors to which the petitioner has been relegated to, by reason of patently illegal orders passed by the respondent no. 3 when the matter would have been disposed of as far back as in the year 1996 when the 8 petitioner, for the first time, preferred a refund application after the dismissal of his appeal before the Supreme Court but the respondent no. 3 engaged this petitioner into unwarranted and purposeless litigations. In this connection, I am tempted to quote two judgments of the Supreme Court passed in similar situations. The Supreme Court in the case of M/s. Hindustan Sugar Mills Vs. The State of Rajasthan reported in A.I.R. 1981 SC 1681 has observed as follows- "…….We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand……." This was a case relating to reimbursement of Sales Tax. The opinion expressed by his Lordship of the Supreme Court was reiterated in recent judgment reported in 2010 (1) SCC 512 (Urban Improvement Trust Bikaner Vs. Mohan Lal). Dismissing the S.L.P. the Supreme Court held as follows:- "Para-5; It is a matter of concern that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act 9 in a callous and high-handed manner. They cannot behave like private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently…..” His Lordship referring to several other judicial pronouncement on the issue went on to hold in paragraph-10 as follows:- "Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are" (i) All claims against Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of law. (ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved parties approach the Court and secure a decision. ……………….” Despite the judicial pronouncement drawing the attention of the authorities of the Central and State Government and the statutory corporations on the issue of generation of purposeless litigations, I am afraid the situation has neither improved nor can be improved until the authorities manning the adjudicatory post in the Department and performing quasi judicial functions do not show their willingness to curb such litigations rather proceed mechanically with their eyes shut and ears closed towards the opinion and concern expressed by the superior courts. The case in hand is a perfect example of an authority 10 while purporting to perform quasi judicial functions is in fact fighting tooth and nail to keep a lis alive by engaging the assessee to unwarranted protracted litigation for a period ranging almost 15 years until he finally chose to conclude the same on his own terms. The issue on merit would not detain us, since the determination of the liability is already affirmed under the order of the Supreme Court and all that was required was the quantification of the same and for which the adjudicatory authority that is the respondent no. 3 took precious 15 years. The order impugned is patently illegal and perverse to the core and thus cannot be sustained. As the liability of the petitioner to pay Excise duty stands determined at Rs. 3,34,958.45/- i.e. far below the deposits made by him, the petitioner would be liable for payment of interest at the statutory rate prevalent during the said period w.e.f. 16.7.1981 being the date on which the demand notice was issued until the date on which the petitioner ultimately deposited the total amount of Rs. 15 lacs in terms of the directions of the Supreme Court which according to him was completed on 29.9.1986. The petitioner at the same time would also be entitled to refund of the balance amount together with interest at the rate of 12 per cent per annum calculated with effect from 1.10.1986 in terms of the interim order passed by the Supreme Court on 20.3.1986. 11 In the result, the writ petition is allowed. The order passed by the Assistant Commissioner, Central Excise and Service Tax Division, Patna as contained in Annexure-9 is set aside. The respondent no. 3 the Assistant Commissioner is directed to determine the liability of the petitioner afresh in terms of the observation of this Court as fully indicated hereinabove and after adjusting the liability refund the balance amount to the petitioner in terms of the order aforesaid within a period of three months from today but not beyond 31.12.2010 failing which the petitioner would be entitled to interest at the rate of 15% w.e.f. 1.1.2011 until the date of payment. As the petitioner has been relegated to unwarranted protracted litigation since after the order of the Supreme Court by reason of the harassing attitude of the respondent no. 3, hence Sri P.Vijay Kumar the then Assistant Commissioner and the author of the impugned order shall further pay a cost of Rs. 10,000/- (ten thousand) only from his personal pocket to the petitioner within the period stipulated above. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)