UNION OF INDIA Vs. ORION CHEMICALS

JUDGEMENT

(1.) This is an appeal preferred by the Union of India against judgment dated January 30,1987 delivered by learned single Judge in Writ Petition No. 222 of 1987. By the impugned judgment, the appellants were directed to refund a sum of Rs. 2,28,199.25 together with interest at the rate of 15% p.a. from the date of the judgment till date of payment to the original petitioners. The original petitioners arc M/s Orion Chemicals, a partnership firm registered under the Partnership Act. The refund was granted by the learned single Judge in respect of three bills of entries dated November 28, 1984, October 19, 1984 and September 24, 1984 as indicated in the work-sheet attached to the petition.

(2.) Shri Deodhar, learned Counsel appearing on behalf of the appellants, submitted that the order was secured from the learned single Judge by playing fraud upon the Court. Shri Deodhar submitted that the bill of entry dated September 24,1984 was lodged with the Customs House by M/s Dyes Distributors India Ltd. and the said Company had filed petition claiming refund in this Court. M/s Dyes Distributors India Ltd. secured an order for refund. Shri Deodhar also points out with reference to the affidavit filed by the Assistant Collector of Customs that in respect of bill of entry dated November 28,1984, one Kumar Prabhulal Shah had filed petition for refund in the name of M/s Abad Fisheries and not only secured an order from this Court but had also taken away the amount of refund. Shri Deodhar submits that the statement of Kumar Prabhulal Shah under Section 108 of the Customs Act was recorded and Shah admitted that he had filed the petition on behalf of M/s Orion Chemicals without any authority.

(3.) In view of the affidavit filed on behalf of the appellants, it was necessary to ascertain whether respondents had filed the original petition. The notice of appeal was waived by Nitin R. Kantawala, Advocate at the stage of admission of the appeal, i.e. on April 20,1988. Neither M/s Orion Chemicals nor Shri Kantawala are present in Court in spite of the fact that the matter was adjourned on more than one occdsion. We directed Shri Deodhar to serve notice upon the partners of M/s Orion Chemicals to remain present in Court. In spite of the service of notice, the partners have not chosen to appear in Court. 3A. It is therefore obvious that a bogus petition was filed in the name of M/s Orion Chemicals and a fraudulent order was secured from the learned single Judge. Such order cannot be sustained and is required to be set aside.