TaxTMI 
TaxTMI 
2024 (2) TMI 97
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....etition are required to be noted, which reads thus: (a) that this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the first impugned notification dated 13 January 2012, issued by the Respondent No. 1 (being Exhibit 'D' hereto) and after going into the validity and Iegality thereof to quash the same. (b) that this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the second impugned notification dated 19 January, 2017, issued by the Respondent No. 1 (being Exhibit 'E' hereto) and after going into the validity and legality thereof to quash the same. (c) that this Hon'ble Court be pleased to direct respondent no. 2 to refund the Anti-Dumping Duty amounted to Rs. 9,24,97,208/- collected under the impugned notifications along with the interest at the appropriate rate." 4. At the outset, we may observe that the petition is thoroughly misconceived to say the least and for ....
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....ion No. 85 of 2006 shall remain in force up to and inclusive of 28 November, 2011. It is contended that thereafter on 19 November, 2011 the time period of sunset review had expired, by a notification no. 15/14/2010-DGAD, the Designated Authority had recommended continuation of the antidumping duty. 7. It is the petitioner's case that on 13 January, 2012, respondent no. 1 issued the first impugned notification i.e. No. 3 of 2012. By this notification, anti-dumping duty on import of said materials from the People's Republic of China, Chinese Taipei, Malaysia, Indonesia, Thailand and People's Republic of Korea was re-imposed. It is contended that as per Clause 2 of this Notification, the anti-dumping duty was imposed for a period of five years from the date of its issue i.e. 13 January, 2012 and hence such notification was to lapse on 12 January, 2017. It is contended that thereafter on 19 January, 2017, respondent no. 1 issued the second impugned notification i.e. No. 4 of 2017, which inter alia recorded that the Designated Authority vide notification no. 15/17/2016-DGAD dated 9 January, 2017 had initiated a sunset review of anti-dumping duty imposed by notification no 3 of 2012....
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....e not at all satisfied with the frame of the petitions, so as to entertain the challenge of the petitioners and the prayers they have made. We see that Writ Petition No. 2097 of 2022 has 48 petitioners. There are no pleadings on the fact as to how the petitioners are aggrieved. Similar is the position in Writ Petition No. 3798 of 2021 where, there are 171 petitioners as also in Writ Petition No. 1384 of 2021 where, there are 6 petitioners. 2. We are of the clear opinion that if the individual petitioners are aggrieved, they need to file appropriate petitions. We are accordingly not in a position to entertain these petitions. 3. We dispose of these petitions with liberty to the petitioners to take recourse to an appropriate remedy, as may be available in law. 4. All contentions of the parties are expressly kept open." (emphasis supplied) 10. In the light of the above observations of this Court, the petitioner contends that the present petition is filed, being its independent proceedings. It is the petitioner's case that considering the decisions of the Supreme Court in Union of India and Ors. Vs. Kumho Petrochemicals Company Limited and Ors. (supra), Lohia Machines Ltd.....
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....jurisdiction of this Court under Article 226 of the Constitution of India. This more particularly as the petitioner has made a money claim (prayer clause (c)), thus the basic desire of the petitioner is to directly make a money claim. We may observe that when the petitioner's claim is for refund of the anti dumping duty paid between the period 2012 to 2018, which being a serious prayer made in a writ petition, that too paid by the petitioner acting upon the notifications which were prevailing at that point of time before the writ Court, which needs to be considered by the Court with a grain of salt. The task to succeed in such claim when considered in law, in our opinion is quite herculean. We discuss the above issues which would weigh with the Court in such situation to entertain the writ petition. I. Demand for Justice 14. At the outset, we find from the frame of the petition that the basic requirement for maintaining a writ of mandamus, namely, a request for demand for justice, which would be the first and foremost consideration, before any party could approach the Writ Court is not fulfilled by the petitioner. We find that there was no prior representation made by the petiti....
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...., p. 106): As a general rule, the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that demand was met by a refusal. 25. In the cases before us, there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution." 17. In Amrit Lal Berry vs. Collector of Central Excise, New Delhi & Ors. (1975) 4 SCC 714, the Supreme Court observed that there was no assertion that any representation was made against any violation of a petitioner's right, hence, the rule recognized by the Supreme Court in Kamini Kumar Das Choudhury vs. State of West Bengal (1972) 2 scc 420 that a demand for justice and its refusal must precede the filing of a petition asking for direction or a writ of mandamus, would operate against the petitioners. The relevant observation of the Supreme Court reads thus: "25. In the petition of K.N. Kapur and Others, we do....
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....ioner and such delay is not satisfactorily explained, the High Court would decline to intervene and grant relief in exercise of its writ jurisdiction. It was also held that such rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after an unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. Also referring to the decision in K.V. Rajalakshmiah Setty vs. State of Mysore AIR 1967 SC 993, it has been pointed out that representations cannot be the adequate explanation to take care of delay (albeit in the present case there is none). It was observed that there is a limit to the time which can be considered to be reasonable for making representation and if the Government had turned down one representation, the making of another representation on similar lines will not explain the delay. Referring to the observations of Sir Barnes Peacock in Lindsay Petroleum Co. Vs. Prosper Armstrong Hurd (1874) 5 P....
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....auses injury to the lis. It was also observed that remaining innocuously oblivious to such delay does not foster the cause of justice, on the contrary, it brings in injustice which is likely to affect the others. It was observed that a Court is not expected to give indulgence to such indolent persons who compete with "Kumbhakarna" and for that matter "Rip Van Winkle". In such case, a delay of four years was held to be fatal. Justice Dipak Misra, speaking for the Bench, observed thus:- "16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain ....
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....tedly without any justifiable explanation for bringing the action after unreasonable delay. 22. In Union of India and Others Vs. N. Murugesan and Others (2022) 2 Supreme Court Cases 25 the principles of delay, laches and acquiescence were succinctly explained in which the Court observed that the principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions, however, they have their distinct characters and distinct elements. It was observed that one can say that delay is the genus to which laches and acquiescence are species. It was observed that laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. It was further observed that such principles are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The observations of the Supreme Court on delay and laches w....
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....a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence." III. Whether in view of a prospective decision of the Supreme Court, a cause of action can arise to maintain a Writ Petition 23. We are quite surprised at another logic of the petitioner, which is quite peculiar and astonishing, when the petitioner says that although the petitioner had no grievances at the relevant time and paid duty under the notification(s) in question, now as a decision is rendered by the Supreme Court in Kumho Petrochemicals Company Ltd. (supra), a course of action has arisen to the petitioner. Such contention of the petitioner can have no legs to stand by applying any prudent paramete....
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....ved that the petition under Article 226 of the Constitution solely praying for issue of a writ of mandamus directing the State to refund the money, is not ordinarily maintainable for the simple reason that a prayer for such a refund can always be made in a suit against the authority which had illegally collected money as a tax. In Union of India Vs. Orient Enterprises and Ors. (1998) 3 SCC 501, the Supreme Court considering the decision in Suganmal vs. State of Madhya Pradesh (supra) observed that at the relevant time, there was no statutory right entitling the respondents to receive money, which according to respondents was towards payment of interest on delayed refund. It was observed that the Writ Petition filed by the respondents thus was not for enforcement of a legal right available to them under any statute, hence following the decision, it was held that the petition seeking relief of payment of interest on delayed refund of the amounts, was not maintainable. 27. There is another factor, which is required to be considered, namely, when the case is on refund of tax, whether the money held by the Government without the authority in law and/or in breach of the Constitutional r....