IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.8981 OF 2007 PETITION NO.8981 OF 2007 PETITION NO.8981 OF 2007 M/s M/s M/s Winner Systems Winner Systems Winner Systems ...... Petitioner Petitioner Petitioner vs vs vs The The The Union of India & ors .. Respondents Union of India & ors .. Respondents Union of India & ors .. Respondents Mr.M.H.Patil Mr.M.H.Patil Mr.M.H.Patil for Petitioner for Petitioner for Petitioner Mr.A.J.Rana,Sr.Advocate Mr.A.J.Rana,Sr.Advocate Mr.A.J.Rana,Sr.Advocate with Ms.Nita Masurkar and with Ms.Nita Masurkar and with Ms.Nita Masurkar and Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi for Respondents for Respondents for Respondents CORAM CORAM CORAM : F.I.REBELLO AND : F.I.REBELLO AND : F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : : : 10th January, 2008 10th January, 2008 10th January, 2008 P.C. P.C. P.C. 1.1.1. Rule. Heard forthwith. Rule. Heard forthwith. Rule. Heard forthwith. 2.2.2. The petitioner had filed his declaration on The petitioner had filed his declaration on The petitioner had filed his declaration on 21st 21st 21st December, 1998 under the Kar Vivad Samadhan December, 1998 under the Kar Vivad Samadhan December, 1998 under the Kar Vivad Samadhan Scheme, Scheme, Scheme, 1998 for consideration of the application 1998 for consideration of the application 1998 for consideration of the application. The The The requisites of section 95 (2) of the Finance requisites of section 95 (2) of the Finance requisites of section 95 (2) of the Finance Act, Act, Act, 1998 had to be complied with. According to 1998 had to be complied with. According to 1998 had to be complied with. According to the the the petitioner, he satisfied all the three petitioner, he satisfied all the three petitioner, he satisfied all the three predicates. predicates. predicates. In so far as the appeal is concerned, In so far as the appeal is concerned, In so far as the appeal is concerned, ititit was filed on 9th November,1998 though there was was filed on 9th November,1998 though there was was filed on 9th November,1998 though there was delay delay delay in preferring the appeal. The tribunal in preferring the appeal. The tribunal in preferring the appeal. The tribunal refused refused refused to to to condone the delay and accordingly appeal condone the delay and accordingly appeal condone the delay and accordingly appeal was was was dismissed. Aggrieved the petitioner filed a dismissed. Aggrieved the petitioner filed a dismissed. Aggrieved the petitioner filed a petition petition petition before this Court. That petition was before this Court. That petition was before this Court. That petition was allowed. allowed. allowed. The order was set aside and a direction The order was set aside and a direction The order was set aside and a direction was was was given that the appeal be heard on merits. given that the appeal be heard on merits. given that the appeal be heard on merits. Considering Considering Considering that the appeal was to be heard the that the appeal was to be heard the that the appeal was to be heard the delay delay delay was also condoned. The petitioner’s was also condoned. The petitioner’s was also condoned. The petitioner’s application application application is still pending. On behalf of the is still pending. On behalf of the is still pending. On behalf of the respondents, respondents, respondents, it was sought to be pointed out that it was sought to be pointed out that it was sought to be pointed out that the the the scheme came to an end on 31st January, 1999. scheme came to an end on 31st January, 1999. scheme came to an end on 31st January, 1999. The The The application filed by the petitioner was application filed by the petitioner was application filed by the petitioner was rejected rejected rejected by an order which was communicated on 7th by an order which was communicated on 7th by an order which was communicated on 7th April,2005. April,2005. April,2005. The petitioner aggrieved preferred an The petitioner aggrieved preferred an The petitioner aggrieved preferred an appeal appeal appeal before the CESTAT. That appeal was before the CESTAT. That appeal was before the CESTAT. That appeal was dismissed. dismissed. dismissed. In so far as the main appeal is In so far as the main appeal is In so far as the main appeal is concerned, concerned, concerned, the order was set aside and the matter the order was set aside and the matter the order was set aside and the matter remanded remanded remanded back to the Commissioner. back to the Commissioner. back to the Commissioner. 3.3.3. On remand, on behalf of the petitioner, it was On remand, on behalf of the petitioner, it was On remand, on behalf of the petitioner, it was again again again submitted that the petitioner’s application submitted that the petitioner’s application submitted that the petitioner’s application under under under the KVSS, 1998 should be considered. The the KVSS, 1998 should be considered. The the KVSS, 1998 should be considered. The Commissioner Commissioner Commissioner rightly held that as earlier rightly held that as earlier rightly held that as earlier application application application was rejected it was not open to him to was rejected it was not open to him to was rejected it was not open to him to once once once again consider the same. again consider the same. again consider the same. 4.4.4. In the present petition, the petitioner has In the present petition, the petitioner has In the present petition, the petitioner has sought sought sought by way of relief of mandamus to direct the by way of relief of mandamus to direct the by way of relief of mandamus to direct the respondent respondent respondent no. 2 to re-consider and accept the no. 2 to re-consider and accept the no. 2 to re-consider and accept the declaration declaration declaration dated 21st December, 2008. On behalf dated 21st December, 2008. On behalf dated 21st December, 2008. On behalf of of of the the the respondents, learned counsel submits that as respondents, learned counsel submits that as respondents, learned counsel submits that as the the the scheme came to an end on 31st January, 1999 it scheme came to an end on 31st January, 1999 it scheme came to an end on 31st January, 1999 it would would would not be open to the respondent no. 2 to not be open to the respondent no. 2 to not be open to the respondent no. 2 to consider consider consider the said application. Our attention was the said application. Our attention was the said application. Our attention was invited invited invited by learned counsel for the petitioner to by learned counsel for the petitioner to by learned counsel for the petitioner to the the the judgment judgment judgment of the Supreme Court in Swan Mills Ltd of the Supreme Court in Swan Mills Ltd of the Supreme Court in Swan Mills Ltd vs vs vs Union Union Union of India 2007 (214) E.L.T. 322 (SC) where of India 2007 (214) E.L.T. 322 (SC) where of India 2007 (214) E.L.T. 322 (SC) where also also also on similar facts the Supreme Court held that on similar facts the Supreme Court held that on similar facts the Supreme Court held that though though though delay was condoned subsequent to 31st delay was condoned subsequent to 31st delay was condoned subsequent to 31st January, January, January, 1999 considering the vested right in the 1999 considering the vested right in the 1999 considering the vested right in the petitioner, petitioner, petitioner, the application had to be considered. the application had to be considered. the application had to be considered. 5.5.5. In the instant case, when the application was In the instant case, when the application was In the instant case, when the application was made made made on 21st December, 1998 the scheme was in on 21st December, 1998 the scheme was in on 21st December, 1998 the scheme was in force. force. force. The petitioners satisfied all the The petitioners satisfied all the The petitioners satisfied all the requirements. requirements. requirements. In so far as the appeal is In so far as the appeal is In so far as the appeal is concerned, concerned, concerned, at the relevant time the same had been at the relevant time the same had been at the relevant time the same had been dismissed dismissed dismissed on the ground of limitation. However, on the ground of limitation. However, on the ground of limitation. However, subsequently, subsequently, subsequently, that order was set aside and this that order was set aside and this that order was set aside and this Court Court Court condoned the delay with a direction that the condoned the delay with a direction that the condoned the delay with a direction that the appeal appeal appeal be be be heard. In otherwords, the requirement of heard. In otherwords, the requirement of heard. In otherwords, the requirement of pendency pendency pendency of appeal has also been satisfied. Once of appeal has also been satisfied. Once of appeal has also been satisfied. Once the the the petitioner had a right for his application to petitioner had a right for his application to petitioner had a right for his application to be be be considered, the mere fact that subsequently the considered, the mere fact that subsequently the considered, the mere fact that subsequently the scheme scheme scheme has expired would be of no consequence and has expired would be of no consequence and has expired would be of no consequence and consequently consequently consequently the petitioner’s application has to be the petitioner’s application has to be the petitioner’s application has to be considered considered considered according to law on its own merits. according to law on its own merits. according to law on its own merits. 6.6.6. In the light of the above, we direct the In the light of the above, we direct the In the light of the above, we direct the respondent respondent respondent no. 2 to consider the petitioner’s no. 2 to consider the petitioner’s no. 2 to consider the petitioner’s application application application dated 21st December, 1998 according to dated 21st December, 1998 according to dated 21st December, 1998 according to law law law and dispose of the same at any rate and not and dispose of the same at any rate and not and dispose of the same at any rate and not later later later than 12 weeks from today. than 12 weeks from today. than 12 weeks from today. 7.7.7. Rule is made absolute accordingly. However, Rule is made absolute accordingly. However, Rule is made absolute accordingly. However, there there there shall be no order as to costs. shall be no order as to costs. shall be no order as to costs. (F.I.Rebello, (F.I.Rebello, (F.I.Rebello, J) J) J) (R.S.Mohite, (R.S.Mohite, (R.S.Mohite, J) J) J)