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Judgment
Anil R. Dave, J.—RULE.
Heard learned advocate Shri A.L. Shah for the petitioner and learned Asst. Solicitor General Shri Jitendra Malkan for the respondents.
Looking to the facts of the case and upon hearing the learned advocates, in our opinion, interim relief is required to be granted to the petitioner at this stage. Shri Malkan, learned Asst. Solicitor General, has submitted that in view of the judgment of the Hon''ble Supreme Court delivered in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, , no interim relief should be granted in the instant case. According to him, for recovery of dues of the Government, the authorities can take possession of the machinery, which is subject-matter of the petition. Shri Malkan has further submitted that grant of interim relief in favour of the petitioner at this stage would amount to allowing the entire petition.
On the other hand, upon hearing learned advocate Shri Shah and upon perusal of the relevant record, it appears that no harm would be caused to the government if interim relief is granted to the petitioner at this stage because no amount has become due and payable in respect of the obligation with which the machinery has been purchased by the petitioner under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. After purchase of the machinery in question, the petitioner has undertaken to fulfill the obligation with regard to export of yarn, which was to be manufactured with help of the said machinery by the transferor company, viz. M/s. Tai Chonbang Textile Industries Ltd.
In our opinion, grant of interim relief to the petitioner would not amount to allowing the petition because at this stage no amount has become due and payable under the EPCG Licence under which the petitioner has to get benefit as a transferee of the machinery. Hence, there is no question of making payment of any duty or tax to the government by the petitioner unit at this stage.
It is pertinent to note that the obligation under the aforesaid scheme is to export a particular quantity of yarn before the end of 14th October, 2007. Looking to the said fact, in our opinion, no harm would be caused if the following relief is granted to the petitioner.
The respondent authorities are restrained from taking possession of the machinery in question and it would be open to the petitioner to commence manufacturing activity and export the goods which might be manufactured against the export obligation, which M/s. Tai Chonbang Textile Industries Ltd. had undertaken. So as to secure interest of the government, we also direct the petitioner to deposit Rs. 25 lakhs with this Court. The said amount shall be deposited with a nationalised bank by the Registry of this Court for a period of six months at the first instance. The petitioner shall also execute a bond, as M/s. Tai Chonbang Textile Industries Ltd. had executed, so as to see that the petitioner company fulfils the obligation which the transferor company had to fulfill so as to avail the benefit under the EPCG licence.
The petitioner shall not sell, transfer or otherwise dispose of the machinery in question in any manner without permission of this Court and till the entire obligation to be fulfilled by the petitioner is discharged.
If the respondent authorities are aggrieved by this arrangement, it would be open to them to file a further affidavit with a request for modification of this order.
At this stage, learned Asst. Solicitor General Shri Malkan has made a request for stay of implementation of this order for four weeks so as to enable the petitioner to approach the Hon''ble Supreme Court. In our opinion, the request is unreasonable and it is, therefore, rejected.