Case Law Details
Morde Foods Pvt. Ltd. & another Vs Union of India & Others (Bombay High Court)
The question is that if the declarant had filed an appeal before the appellate forum and such appeal was finally heard on or before 30th day of June, 2019; whether the declarant would be eligible to make a declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019? The answer given is that while the declarant would not be eligible under the litigation category but once the order in appeal is passed (which presumably is post 30.06.2019), the declarant can file a declaration under the arrears category provided the appeal has attained finality or further appeal period is over or that the declarant gives an undertaking that he would not file any further appeal. This would go to show that final hearing of the appeal on or before 30th day of June, 2019 is not the only decisive factor in determining eligibility. According to the Board, post 30.06.2019, the declarant can still make a declaration under the arrears category once the order in appeal is passed whereby the matter has attained finality or the declarant gives an undertaking that he would not file any further appeal or the period for filing further appeal is over. While question No.5 and the answer given thereto throw some light that post 30.06.2019 developments can be taken into consideration while determining eligibility, it still does not deal with a situation as in the present case where the appellate forum sets aside the order-in-original and remands the matter back to the adjudicating authority for a fresh decision.
Thus, in the light of the discussions made above, we are of the view that decision of the designated committee i.e., respondent No.2 dated 13.01.2020 rejecting the declaration of petitioner No.1 under the litigation category on the ground of ineligibility was not correct and is liable to be interfered with. Since we have arrived at this finding, it would not be necessary for us to proceed to the subsequent declaration under the arrears category and its rejection by respondent No.2 on 30.01.2020.
The question posed is what would be the position when adjudication order was passed and received prior to 30.06.2019 but appeal is filed on or after 01.07.2019. Answer given by the Board is that in such a case, the declarant would not be eligible under the litigation category. However, if the declarant withdraws the appeal and gives an undertaking not to file further appeal, he can make a declaration under the arrears category. Here also, post 30.06.2019 development is a relevant factor which can be taken into consideration to determine eligibility.
The situation which arises in the present case is not covered by the eligibility exclusions under sub-section (1) of section 125 or under any of the provisions of the scheme. This is so because though the appeal of petitioner No.1 was heard by CESTAT on 10.05.2019 (which was certainly prior to 30.06.2019), it was finally disposed of subsequently on 08.11.2019. While disposing of the appeal, CESTAT set aside the order in original dated 16.06.2015 and remanded the matter back to the adjudicating authority for de novo decision on the show cause notice dated 24.12.2014 firstly by confining to the point of limitation. Therefore, though the appeal was heard on 10.05.2019, by the subsequent order of CESTAT dated 08.11.2019 the said hearing held on 10.05.2019 was rendered redundant reverting the petitioner back to the stage of show cause notice at the stage of adjudication. This was the position when petitioner No.1 filed its declaration under the litigation category and which facts were available on record when the designated committee decided the said declaration on 13.01.2020. If petitioner No.1 was at the stage of show cause notice with no fresh adjudication order then certainly it would be eligible to file declaration under the litigation category.
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