Dy. Commr. of C. Ex. vs A.S. Bindra

T.P.S. Mann, J.—On 7-7-1999, an order (Annexure P-l) was passed by the petitioner restraining the respondents'' Concern from

removing, parting with or otherwise dealing with the capital goods valued at Rs. 27.12 crores, except with the prior permission of the Department

in terms of proviso to Section 110(1) of the Customs Act, 1962. The said restraint order was challenged by the respondents'' Concern by filing

CWP No. 11029 of 1999, which was disposed of by a Division Bench of this Court on 21-9-1999 Pml Industries Ltd., Derabassi Vs. Union of

India and Others, by passing the order which is reproduced herein below:

We have heard counsel for the parties and have perused the record. We are of the view that since the matter is being investigated and the

department has yet to come to a final conclusion, it will not be appropriate for us at this stage to express any opinion on the merits of the

contentions advanced by either of the parties. In the circumstances of the case, we are of the view that it would be in the interest of justice to direct

the department to conclude the investigation and pass a final order in the proceedings initiated u/s 111(0) of the Act. We, therefore, direct the

department to pass a final order as expeditiously as possible but not later than 31-10-1999 and till then the restraint order passed u/s 110 of the

Act will continue to operate. We, however, make it clear that if the final order is not passed within the aforesaid period, the operation of the

restraint order will be deemed to have been stayed. Since the manufactured boneless buffalo meat has a limited shelf life and is a perishable

commodity, we further direct respondent No. 2 to depute a senior officer of the department to prepare an inventory of the meat already

manufactured in the presence of the representatives of the petitioner-company latest by 1-10-1999 and allow the latter to export the same in

accordance with law.

The writ petition stands disposed of as above. No costs. Copy of the order be supplied dasti on payment of usual charges.

September 21, 1999

Sd/-

N.K. Sud

Sd/-

N.K. Sodhi

Judges

As is clear from the aforementioned order, the Department was directed to pass a final order as expeditiously as possible but not later than 31-

10-1999 and till then the restraint order was directed to continue. It was also directed that respondent No. 2, in the writ petition, shall depute a

senior Officer of the Department to prepare an inventory of the meat already manufactured in the presence of the representatives of the

respondents'' Concern latest by 1-10-1999 and the respondents'' Concern was, thereafter, allowed to export the manufactured meat in

accordance with law.

It is not in dispute that in pursuance of the aforementioned order, final order was passed by the Department on 30-10-1999. However, the said

order was challenged by the respondents'' Concern by filing an appeal before the Central Excise and Sales Tax (Appellate Tribunal), New Delhi.

The appeal was accepted on 18-6-2004. Aggrieved of the same, the Department filed CEA No. 45 of 2004, which appeal stands admitted for

final hearing.

As regards the second part of the aforementioned order dated 21-9-1999, whereby respondent No. 2, in the writ petition, was directed to

depute a senior Officer for the purpose of making an inventory of the meat already manufactured, the case of the petitioner in the present petition is

that on 27-9-1999, the staff of the Central Excise Department visited the premises of the respondents'' Concern for the purpose of preparing the

inventory. To the surprise of the Officers of the Department, who visited the factory premises, they found that the manufacturing process was still

going on and the staff of the respondents was entering the quantity manufactured in their statutory records i.e. R.G.I, register meant for the purpose

of declaring the opening balance, quantity manufactured, removal, duty and the closing balance. Moreover, in spite of clear directions as contained

in the aforementioned order, the respondents had produced the goods in their factory premises and even removed the same from there. When the

Officers of the Department wanted to take possession of the record by preparing resumption memo, they were obstructed by the staff of the

respondents'' Concern, who even refused to sign the resumption memo. The resumption memo was, however, prepared by the Officers of the

Department in the presence of two independent witnesses, who appended their signatures.

According to the respondents, as is clear from their respective replies, there was nothing in the restraint order dated 7-7-1999 debarring the

respondents'' Concern from continuing with the manufacturing process. The intention of the Department in passing the restraint order was to secure

its financial interest regarding the duty payable by the respondents'' Concern on the capital goods imported by it. It has also been denied that the

Officers of the Department were obstructed in the performance of their duties. Full co-operation was extended to the Officers and requisite record

made available to them.

As per from the order dated 21-9-1999, a senior Officer of the Department was to be deputed for preparing an inventory of the meat already

manufactured. In that regard the Officers of the Department were to inspect the statutory record maintained by the respondents'' Concern. Mere

fact that the staff of the respondents'' Concern refused to sign the resumption memo prepared in order to take the daily stock register and form IV

register was not sufficient to hold that the respondents disobeyed the orders passed by this Court on 21-9-1999. Moreover, there was no

direction issued by this Court that the respondents could not carry on with the manufacturing process. It was in the eventuality of the Department

not passing a final order on or before 31-10-1999 that the restraint order dated 7-7-1999 was not to remain in operation. Even in the order dated

21-9-1999, it was not mentioned that the respondents'' Concern was not allowed to carry on with the manufacturing process. It was only

restrained from removing, parting with or otherwise dealing with the capital goods valued at Rs. 27.12 crores. As there was no specific direction

by the Division Bench of this Court restraining the respondents'' Concern from manufacturing boneless buffalo meat, it cannot be said that by

carrying on with such an activity, the respondents exposed themselves to liability for being in contempt of this Court.

Resultantly, I do not find any merit in the present petition, which is, therefore, dismissed. Rule is discharged.