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PETITIONER: NATWAR TEXTILE PROCESSORS PVT.LTD

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT09/01/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 2256            1995 SCC  (1) 753  JT 1995 (2)    31        1995 SCALE  (1)95

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by B.P JEEVAN REDDY, J.- Leave granted.  Heard counsel for  the parties. 2.   This  appeal arises from the judgment and order of  the Gujarat High Court dismissing the writ petition filed by the appellant,  being SCA No. 2885 of 1986.  The  writ  petition filed in the High Court and the special leave petition filed in this Court against the judgment of the High Court do,  in our  opinion, amount to gross abuse of process of  court,  a fact   which  would  be  evident  from  the   facts   stated hereinafter.   We are taking the facts from the judgment  of the  High Court and we may mention that the  correctness  of none of those facts is disputed before us. 3.   A notice dated 28-12-1983 was served upon the appellant by   the  Central  Excise  Authorities  alleging  that   the appellant  had  clandestinely  removed  power  loom   cotton fabrics  worth  rupees sixty-two crores without  payment  of excise duty during the period 24-11-1979 to 31-7-1983.   The allegation  was  that the appellant  wrongfully  availed  of exemption  notification and cleared the goods in an  illicit manner.   The appellant challenged the validity of the  said show-cause notice by filing a writ petition  755 in the Gujarat High Court, being SCA No. 4611 of 1984, which was disposed of on 13-9-1984 under the following order:               "No  final action pursuant to  the  show-cause               notice   had  been  taken.   It  is  for   the               petitioners  to show-cause.   Their  complaint               before  us is that certain documents on  which               they  would  like to rely, though  the  Excise               Authorities  have indicated that they  do  not               propose   to  rely  on  them,  are  not   made               available  to them despite their  request  and               this may vitiate the proceedings now taken  as               it would be in violation of the principles  of

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             natural   justice.    Though  we   have   been               addressed  elaborately  by  the   petitioners’               counsel,  we have not been persuaded to  agree               that interference at this stage is called for.               It  is  open to the petitioners  to  urge  all               their contentions in answer to the  show-cause               notice  including their contention as  to  why               the copies of the documents sought for by them               are necessary for the proper conduct of  their               defence  and  as  to how  nonsupply  of  those               copies  would  vitiate  the  proceedings.   We               expect the excise authorities to properly look               into   all  the  contentions  taken   by   the               petitioners  including the contention of  non-               supply  of  copies.  It is  not  necessary  to               consider in this petition whether those copies               would be relevant and whether if not  supplied                             now, the proceedings would have been held to b e               bad.               We  do not think, on the facts averred in  the               petition,  any  case  has been  made  out  for               interference.   Hence  we are  dismissing  the               petition as premature.  Dismissed."  (emphasis               added) 4.   Against the said order of the High Court, the appellant approached  this Court by way of Special Leave Petition  (C) No. 11569 of 1984, which was dismissed on 6-5-1985 under the following order:               "The point as to the limitation before us  can               be  raised in reply to the  show-cause  notice               received by the petitioners.  The request  for               inspection of documents can also be raised  by               the  petitioners,  before  the  Collector   of               Customs,  Central Excise.  We trust  that  the               request will be duly considered.  The  special               leave petition is dismissed accordingly."               (emphasis added) 5.  Meanwhile,  the  appellant had applied  to  the  Central Excise  Authorities for inspection of certain  documents  on 16-7-1984.   It  is  evidently this request  which  finds  a mention in the order of this Court aforesaid.  This  request was   rejected  by  the  authorities  on  16-12-1985.    The appellant  then approached the Gujarat High Court by way  of SCA No. 317 of 1986 questioning the refusal of inspection of documents asked for by him.  When the writ petition came  up for  hearing  before  a Division  Bench  on  18-3-1986,  the appellant  sought  to withdraw the writ  petition.   It  was dismissed as withdrawn under the following order:               "Mr  V.N. Nair on behalf of Mr  S.I.  Nanavati               wants permission of the court to withdraw this               petition  as not pressed reserving liberty  to               agitate  this matter as and when he  files  an               appeal  to the Tribunal against the  order  of               the  Collector if at all such  an  eventuality               arises.  Permission to               756               withdraw   is  granted  with   the   abovesaid               observations and as such this writ petition is               dismissed as withdrawn." (emphasis added) 6.   It   is  obvious  that  the  appeal  to  the   Tribunal contemplated  in the aforesaid order was an  appeal  against the  final orders passed pursuant to the show-cause  notice. The  idea  was that the appellant can  raise  all  questions which  are  open  to him in law in  such  appeal.   However,

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seeking  to misinterpret the said order of the  High  Court, the  appellant filed an appeal before the CEGAT against  the very   same  order  dated  16-12-1985.   On   the   Tribunal expressing a doubt as to the maintainability of the  appeal, the  appellant withdrew the appeal unconditionally.  It  was dismissed as withdrawn on 15-5-1986. 7.   Within two weeks of the dismissal of its appeal by  the Tribunal,  the appellant again approached the  Gujarat  High Court, during the summer vacations, in the last week of  May 1986.  The prayers in the writ petition are to the following effect:               "(A)  This  Hon’ble Court may  be  pleased  to               issue a writ of mandamus and/or any other writ               in  the  nature  of  mandamus  directing   the               respondents  to  give the  inspection  of  the               documents mentioned at Serial Nos. 1, 2 and  4               in  the  letter dated 16-7-1984  which  is  at               Annexure D to this petition.               (B)   The   Hon’ble   Court   may   issue   an               appropriate  writ,  mandamus or  direction  or               order  quashing  and setting aside  the  order               passed by the Collector of Central Excise  and               Customs,  Baroda dated 16-12-1985 which is  at               Annexure C to this petition." 8.   It  is  evident  that the writ  petition  was  directed against the very same order of the excise authorities (dated 16-12-1985) which was already the subject-matter of SCA  No. 317  of  1986,  which was  dismissed  as  withdrawn  without reserving any liberty to the appellant to approach the  High Court again and which was also the subject-matter of  appeal before the Tribunal which too was withdrawn by the appellant unconditionally.   Even  so,  the  appellant  succeeded   in obtaining an interim order from the High Court on  23-6-1986 which  order was extended to 1-9-1986 pending final  orders. While  extending the interim order, the court  directed  the matter to be posted for admission on 22-9-1986.  It did  not so  come  up  for  admission,  whereupon,  the   respondents (Central Excise Authorities) moved the court for hearing the matter.   It was found that the record was missing.   By  an order  dated 7-10-1989, the court directed the record to  be reconstructed and thereafter it was posted before a Division Bench for final hearing.  The above facts impelled the  High Court to make the following observations:               "It  is  rather shocking and much  painful  to               note  that the matter filed in the  year  1986               has  remained  at  the  admission  stage  till               today.  The facts disclosed prima facie reveal               a  very distressing state of affairs.  Had  it               been a matter pertaining to lower court or any               other Government Department we ourselves would               have given appropriate directions for  holding               inquiry  and for suitable actions to be  taken               against persons                757               responsible   for   such   lamentable   lapse.               However,  since the question pertains  to  the               administration  of the High Court  itself,  we               ourselves  would rather refrain  from  passing               any  such order.  But we direct the  Registrar               of  the  High Court to place a  copy  of  this               judgment  before  the  learned  Chief  Justice               drawing his attention to this aspect.  We hope               and trust that the learned Chief Justice  will               take suitable effective actions in the matter,               with  a  view  to  find  out  as  to  who   is

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             responsible  for  the  disappearance  of   the               papers  and  why this was not brought  to  the                             notice  of the learned Chief Justice or to  th e               notice of the Court taking up such matters and               what  steps  are  required  to  be  taken  for               preventing  recurrence of such incidents.   We               hope and trust that suitable effective actions               will be taken against persons who may be found               responsible  for causing disappearance of  the               papers  and also against persons who  did  not               and/or  could  not  prevent  such  things   to               happen." The writ petition was accordingly dismissed. 9.   In the special leave petition filed in this Court,  the following order was made on 11-12-1989:               "Issue  notice on the special  leave  petition               returnable  on 6-2-1990, state in  the  notice               that  the  matter will be disposed of  at  the               notice stage.  In the meantime proceedings may               go on but no final order will be passed.               It  is stated that the proceedings are at  the               stage   where  the  crossexamination  of   the               witnesses  called  by  the  department  is  in               progress.   It  is  further  stated  that  the               diaries which are the subject-matters of  this               adjudication the witnesses called will not  be               cross-examined.   In that view of  the  matter               proceedings to that extent are stayed." The record does not disclose that the special leave petition was  posted on 6-2-1990 as directed in the aforesaid  order. It was posted only sometime towards the end of 1994.  It  is not  known  who is responsible for this  state  of  affairs. This  Court intended that the matter will be disposed of  at the notice stage itself soon after the service of the notice on  the  respondents.   The notice on  the  respondents  was served  immediately  and in fact they filed  their  counter- affidavit  as early as 26-3-1990.  Even so, the  matter  was not posted before the court.  It is equally surprising  that the  respondents  too did not choose to take any  steps  for having  the matter posted early.  The Registrar  General  is directed  to bring this matter to the notice of the  Hon’ble Chief  Justice  for  appropriate  action  to  determine  the culpability,  if  any,  of  any member  or  members  of  the registry  of  this  Court in not  carrying  out  the  orders aforesaid. 10.The  facts  stated  above disclose  how  persons  without scruples are abusing the system of administration of justice in this country.  They forget that the courts are there  for honest  litigation.   They  think and they try  to  use  the courts to advance their oblique ends and in the process  the courts, the very system, is getting a bad name.  Look at the facts  of  this case.  The showcause notice  was  issued  in December 1983.  It was questioned immediately 758 by  the  appellant  by  way of a  writ  petition  which  was dismissed  in  September 1984.  The  appellant  carried  the matter  to  this  Court, which was dismissed  in  May  1985. Meanwhile,   he  had  applied  for  inspection  of   certain documents, which was rejected in December 1985.  He filed  a writ  petition  against  the said refusal  and  withdrew  it without seeking and obtaining the leave of the High Court to approach it again.  Trying to misinterpret the orders of the High Court, he sought to file an appeal before the  Tribunal which  was not maintainable in law.  When that  was  pointed

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out, he withdrew it unconditionally.  Then he filed  another writ  petition against the very same order of December  1985 which  was the subject-matter of SCA No. 317 of 1986 in  the Gujarat  High Court and an appeal before the CEGAT, both  of which  were  withdrawn unconditionally.   This  latest  writ petition could not be disposed of early because the  records were   said   to  be  missing;  the  records   had   to   be reconstructed.  The writ petition was dismissed with  strong condemnation  of the appellant’s conduct.  In spite  of  the same,  the  appellant  comes to  this  Court  and  evidently without disclosing all the facts, obtained an interim  order in December 1989.  Though this Court intended to dispose  of the  matter  within a couple of months,  the  special  leave petition  did not see the light of the day for a  period  of about  five  years with the result that a period  of  eleven years,  the show-cause notice could not be  proceeded  with. The  appellant  has been doing this because he  thinks  that even  if he is liable to pay any duty pursuant to the  show- cause notice, he would not be liable to pay interest thereon since  the  Act does not provide for granting  of  interest. According to the show-cause notice, the duty payable is over rupees  ten crores.  In our opinion, the very filing of  the writ petition, SCA No. 2885 of 1986, is a gross abuse of the process  of  the court and so is the present  special  leave petition/civil appeal.  It is necessary in the interests  of justice  that  such tactics should not be  allowed  to  pass muster  and should, in no event, be allowed to  benefit  the persons  indulging  in  them.  Stringent terms  have  to  be imposed  so  that not only the appellant but  others  minded like  him  should know that they should not  play  with  the courts  and that if they do so, they should not complain  if they  are  mauled  in the process.  This  is  the  price  of abusing the process of court.  The court which is seized  of the matter has the undoubted power to make such orders as it thinks  just and necessary to meet the ends of justice.   It should  be  remembered  that it is the  respondent  who  has invoked the jurisdiction of the High Court and this Court. 11.  Shri  Ashok  Desai, learned counsel for  the  appellant submitted  that his request for inspection of the  documents is a justified one and that all that the appellant wanted to know  was  the  names  of  the  officers  who  visited   the appellant’s factory, the dates and time of their visit so as to enable it to defend itself effectively.  We are, however, not  prepared to entertain the said submission  inasmuch  as the Gujarat High Court had rejected this very submission  in the  earlier  writ petition, SCA No. 317 of 1986,  with  the observation that all these questions can be agitated by  the appellant as and when he files an appeal before the Tribunal against the orders of the 759 Collector,  in case the Collector decides against him.   The said  order  has become final and cannot be  reopened  in  a subsequent writ petition. 12.The appellant has filed written submission wherein it  is stated that a similar request for inspection of documents is pending consideration in the case of another assessee in SLP (C)  No.  22023 of 1993 (Birla Jute Industries v.  Union  of India).   The  appellant  has  also sought  to  make  out  a justification for his request for inspection.  However,  for the reasons stated above, the said submission could not have been  raised  in the writ petition from  which  this  appeal arises  for  the reason stated in the preceding  para.   The appellant  has  also  sought to  blame  the  Central  Excise Authorities  for  not moving fast for  vacating  the  orders passed by the court or for early disposal.  We are surprised

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at this logic.  While we agree that the Revenue  Authorities have  been  lax  in not moving for  early  disposal  of  the matter,  in this Court at any rate, that does  not  explain, condone or justify the conduct of the appellant.  So far  as plea  of  fairness  in action is concerned, it  is  well  to remember  that  fairness  is  not a  one  way  street.   The authorities  are undoubtedly bound to act fairly but  so  is the assessee  more particularly, when he seeks to invoke the discretionary  jurisdiction  of the High Court  or  of  this Court.  No person has a licence to act unfairly and yet call upon others to act fairly. 13.  For  the above reasons, the civil appeal  is  dismissed with  costs.   The  costs payable by the  appellant  to  the respondents  are  assessed  at Rs  15,000.   It  is  further directed that in case any duty is found payable pursuant  to the  show-cause  notice mentioned above, the same  shall  be payable by the appellant with interest @ 18% p.a. calculated from the date of showcause notice up to the date of payment. It  is  also directed that the  appropriate  Central  Excise Authorities  shall dispose of the matter  expeditiously  and that   no  court  or  tribunal  shall  interdict  the   said proceedings until final orders are passed thereon. 760