Demand stayed as review petition pending before Supreme Court

Elite Aromas Vs Union of India (Bombay High Court)

Bombay High Court granted the stay on customs demand on account of pending of the review petition before the Supreme Court in the case of Canon India Pvt. Ltd.

Facts- This batch of petitions are moved on behalf of the petitioners pointing out that these proceedings would stand covered by the decision of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs.

In Idea Cellular Ltd. Vs. The Union of India, whereby this Court has noted that there is a Review Petition arising out of the decision of the Supreme Court in M/s Canon India Private Limited, which is pending before the Supreme Court. Also, subsequent the amendment which was brought about by Finance Act 2022, is also challenged before the Supreme Court in the proceedings of Writ Petitions which too are pending.

Conclusion- Held that it appears that the issues are not different from what the Court considered in the case of Idea Cellular Ltd., Viral Kanubhai Mehta and in the case of Irfan Hajiosman Nursumar. We accordingly pass similar orders on the present proceedings. Hence, Rule. Respondents waive service.

As and by way of ad-interim relief, we stay the impugned order, however, liberty to the respondents to make an application for vacating of the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd.

FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT

1. This batch of petitions are moved on behalf of the petitioners pointing out that these proceedings would stand covered by the decision of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs AIR 2021 SC 1699.

2. We have heard learned counsel for the petitioners, who would bring to our notice an order dated 6 June 2023 passed by a coordinate Bench of the Court in Idea Cellular Ltd. Vs. The Union of India and Another and the subsequent orders passed in the proceedings of Viral Kanubhai Mehta Vs. The Union of India and Others. dated 26 June 2023 in Writ Petition No. 1570 of 2023, and order dated 11 July 2023 on a batch of petitions (Irfan Hajiosman Nursumar & other petitioners vs. Union of India & Ors) in Writ Petition No. 7473 of 2023 & other connected matters, to contend that all these petitions raised issues arising from the decision of the Supreme Court in Canon India Pvt. Ltd. (Supra) to submit that the Court has admitted these petitions.

3. We may note, the first order passed on the proceedings of Idea Cellular Ltd. Vs. The Union of India, whereby this Court has noted that there is a Review Petition arising out of the decision of the Supreme Court in M/s Canon India Private Limited, which is pending before the Supreme Also subsequent the amendment which was brought about by Finance Act 2022, is also challenged before the Supreme Court in the proceedings of Writ Petitions which too are pending.

4. In this view of the matter, we passed the following order in Idea Cellular Ltd. Vs. Union of India.

““1. Heard Mr. Choudhari, learned counsel for the petitioner and Mr. Mishra, learned counsel for the respondents.

2. Learned counsel for the petitioner would submit that the issues as raised in the present petition and subject matter of the impugned order would stand covered by the decision of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs1 . He has also drawn our attention to an order dated 6 June, 2023 passed by a co-ordinate Bench of this Court in Idea Cellular Ltd. Vs. The Union of India & Anr. and other Petitions, to which one of us (G.S. Kulkarni, J.) was a member, in which considering similar issues, the Court made observations in regard to the pending proceedings before the Supreme Court while admitting the petitions and continuing the ad-interim order which was passed in the said petitions. The said order reads thus:

“1. Common issues of law are involved in the present proceedings as observed in the order passed by the co­ordinate bench of this Court on the earlier occasion. The learned counsel for the petitioners submits that the impugned orders passed by the respondent-revenue are contrary to the principles of law as laid down by the Supreme Court in the case of M/s. Canon India Private Limited Versus Commissioner of Customs2 Learned counsel for the parties would inform that there is a petition filed before the Supreme Court praying for review of the decision in Canon India Pvt. Ltd. Also there are subsequent events namely that by an order dated 2 May 2022 an amendment has been made by Finance Act 2022 in which it is alleged to overcome the effect of the decision of the Supreme Court in Canon India Pvt. Ltd. (supra). It is informed by Mr. Nankani, learned senior counsel for the petitioners that the said amendment is also subject matter of challenge in writ petition(s) filed before the Supreme Court which are stated to be pending before the Supreme Court. In this context, Mr. Nankani has drawn our attention to an order passed by the Supreme Court in Civil Appeal No(s). 6142 of 2019 (Union of India & Ors. vs. Aspam Petrochem Pvt. Ltd.) dated 26 July, 2022 which is an order on batch of civil appeals as also writ petitions filed under Article 32 of the Constitution of India, in which the 2022 amendment is stated to be subject matter of challenge. The Supreme Court having noted the order passed in Review Petition No. 400 of 2021 in the case of Commissioner of Customs vs. M/s. Canon India Pvt. Ltd. dated 19 May, 2022, has adjourned the said proceedings awaiting the decision of the review petition.

2. In the aforesaid circumstances, in our opinion, the present petitions would be required to be adjudicated finally as agreed by the learned counsel for the parties. Hence Rule. Respondents waive service.

3. Interim order passed earlier shall continue to operate till the final decision of the petitions.

4. Liberty to the parties to move the Court after the proceedings are decided by the Supreme Court.

5. In the meantime, the parties are directed to complete the pleadings on the petitions.”

3. In our opinion, as the principal issue is subjudice before the Supreme Court as noted in the order dated 6 June, 2023 passed in Idea Cellular Ltd. (supra), we are of the opinion that this petition also needs to be admitted. Hence, Rule. Respondent waives service.

4. As and by way of ad-interim relief, we stay the impugned order, however, liberty to the respondents to make an application for vacating the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd. (supra).”

5. After hearing learned counsel for the parties, it appears that the issues are not different from what the Court considered in the case of Idea Cellular Ltd., Viral Kanubhai Mehta and in the case of Irfan Hajiosman We accordingly pass similar orders on the present proceedings. Hence, Rule. Respondents waive service.

6. As and by way of ad-interim relief, we stay the impugned order, however, liberty to the respondents to make an application for vacating of the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd. (Supra).

7. All contentions of the parties are expressly kept open.