Union of India (UOI) and Others vs Suresh Trading Company

S.P. Bharucha, J.—This is an appeal filed by the Union of India and the Customs authorities against an order directing refund of Customs duty to the writ petitioners.

The writ petition is filed by M/s. Suresh Trading Co., a partnership firm, having its office at 115, Mittal Chambers, Nariman Point, Bombay. The petition is declared by one Harish Sakharam Savardekar, who gives his address as Mittal Tower, Nariman Point, Bombay-21.

We think it necessary to mention that the petitioners'' advocate on record is Dr. Nitin Kantawala.

An affidavit has been placed before us on behalf of the appellants. It is made by Yudhvir Singh Shahrawat, Assistant Collector of Customs. It notes that the petition is filed and declared as aforementioned. Enquiries had been made by the Customs with M/s. Suresh Trading Co. They stated that they had only three partners namely, Mansukhlal M. Vora, Praful Mansukhlal Vora and Aswin Mansukhlal Vora. Harish Sakharam Savardekar was not a partner. They had not filed any refund claim with the Customs. They had imported a consignment of Sorbitol against an import licence issued to M/s. Hima Chem Laboratories, whereof the sole proprietor was Savardekar. They had an agreement with Savardekar for the purpose of importing goods against licences issued to Hima Chem Laboratories. The consignment in respect of which the petition was filed was cleared by Suresh Trading Co. and there was no dispute in regard to the legitimacy of the duty paid. In his affidavit Shahrawat points out that the residential address given by Savardekar is the address of the firm of Suresh Trading Co.

Our attention has been drawn by Dr. Kantawala to an affidavit made by Mansukhlal M. Vora in reply to Shahrawat''s affidavit. It states that Mansukhlal is a partner of Suresh Trading Co. and this company "has entered into a Joint Venture with Shri Harish Sakharam Savardekar, who is a Sole Proprietor of Hima Chem Laboratories. Our said Joint Venture is also called Suresh Trading Company. I say that, by virtue of the said Joint Venture, we, as Partners of Suresh Trading Company, are together Partner with the said Mr. Harish Savardekar, for the purposes of import of Sorbitol USP which was effected in the instant matter." The affidavit says that "due to the said Joint Venture the complete transaction of import and use and end product sale of the goods were jointly done by all of us and therefore, even the claim for refund... was made jointly". The affidavit also states that in this appeal the deponent had, jointly with Savardekar, instructed Dr. Nitin Kantawala. That the residence of Savardekar is shown as the office address of Suresh Trading Co. is explained by saying that it might be a mistake for Savardekar''s office was also at the same address "since the Joint Venture also had the same address as the office address for the said Venture."

Dr. Kantawala submitted that there were, no inconsistencies between the affidavit made by Mansukhlal and the statements made by him in letters written to the Customs authorities, which are annexed to Shahrawat''s affidavit. Reliance is placed by Dr. Kantawala upon the fact that the letters mention an agreement with Savardekar.

What is stated in the letters is that goods were imported by Suresh Trading Co. against a licence issued to Hima Chem Laboratories, the proprietary concern of Savardekar, and that there was an agreement with Savardekar in that regard. Also, that the present writ petition was filed by Savardekar, who was the proprietor of Hima Chem Laboratories and was not a partner of "our firm, i.e. Messrs. Suresh Trading Co.".

Dr. Kantawala has instructions to withdraw the writ petition and to tender an unconditional apology to the court. We shall allow the writ petition to be withdrawn. We do not accept the unconditional apology for the reasons that we now give.

Had matters rested with the letters of Mansukhlal annexed to Shahrawat''s affidavit we might have given to the partners of Suresh Trading Co. the benefit of the doubt and accepted the apology, but there is no doubt in our minds that the affidavit made by Mansukhlal is inculpatory and an attempt to defend Savardekar. Whereas the letters spoke of an agreement between Suresh Trading Co. and the sole proprietary concern of Savardekar whereunder Suresh Trading Co. was to import goods upon licences issued to Savardckar''s concern, what Mansukhlal''s affidavit alleges is a joint venture with Savardekdr and that the name of the joint venture was the name of the firm itself, namely, Suresh Trading Co. It seems to us significant also that the affidavit states that instruction in regard to this appeal were given to Dr. Kantawala by Mansukhlal and Savardekar.

We think, prima facie, that Mansukhlal and his partners Praful Mansukhlal Vora and Aswin Mansukhlal Vora are hand in glove with Savardekar in an attempt to defraud the Customs authorities and, in that attempt, have misused the processes of the court.

By consent, the order under appeal is set aside and the petition is allowed to be withdrawn.

The Prothonotary and Senior Master is directed to issue, suo motu, to Mansukhlal M. Vora, Praful Mansukhlal Vora, Aswin Mansukhlal Vora and Harish Sakharam Savardekar notice to show cause why they should not be proceeded against for contempt for having misused the processes of the court in respect of a fraudulent claim to refund of Customs duty. The notices shall be returnable after six weeks.