A mere concealment or non-disclosure without intent to deceive would not render a decree obtained by a party as fraudulent under the Companies Act 2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2958 OF 2020

Essel Propack Limited … Petitioner

Vs.

Union of India and others … Respondents

Mr. Prasad Paranjape a/w. Mr. Mihir Mehta and Mr. Jas Sanghavi i/b.
PDS Legal for Petitioner.
Mr. Swapnil Bangur a/w. Mr. J. B. Mishra and Ms. Maya Majumdar for
Respondents.

CORAM : UJJAL BHUYAN &
MILIND N. JADHAV, JJ.

Reserved on : MARCH 12, 2021
Pronounced on: MARCH 25, 2021

Judgment and Order : (Per Ujjal Bhuyan, J.)

Heard Mr. Prasad Paranjape, learned counsel for the petitioner and Mr. Swapnil Bangur, learned counsel for the respondents.

2. This case was heard on 24.02.2021 whereafter the case wasreserved for pronouncement of judgment on 15.03.2021. But as thisBench was not available from 15.03.2021, the case was listed on12.03.2021 under the caption ‘for direction’. Since the matter was heard, the same was reserved for delivery of order on 12.03.2021.

3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.08.2019 passed by theCustoms, Excise and Service Tax Appellate Tribunal, West Zonal Bench,Mumbai (CESTAT) rejecting the Miscellaneous Application filed by thepetitioner. Be it stated that in the appeal filed by the petitioner beforeCESTAT being appeal No.E/85319/2018, CESTAT vide order dated 27.09.2018 had held that petitioner had made mis-statement and thuspractised fraud; therefore the appeal filed by the petitioner wasdismissed. It was for recalling of finding of mis-statement or of fraud by CESTAT in the order dated 27.09.2018 that miscellaneous applicationwas so filed by the petitioner which was not only dismissed by CESTATvide the impugned order dated 28.08.2019 but it also imposed cost of Rs.10,000.00 on the petitioner.

4. Case of the petitioner as pleaded is that it is a company incorporated under the Companies Act, 1956 engaged in the business ofmanufacturing multi-layered plastic flexible laminated collapsible tubesand multi-layered plastic flexible laminated web classifiable underChapter 39 of the First Schedule to the Central Excise Tariff Act, 1985. In the course of excise audit of the petitioner’s record carried out during February, 2013 for the period from October, 2010 to September, 2012,the auditors took the view that petitioner had availed ineligible credit ofservice tax paid on certain input services on the strength of documentsnot covered under Rule 9(2) of the CENVAT Credit Rules, 2004 (briefly‘the CENVAT Credit Rules’ hereinafter). This led to issuance of showcause-cum-demand notice dated 23.12.2015 by the Joint Commissionerof Central Excise, Thane-1 Commissionerate. Amongst other allegationsmade it was alleged that petitioner had availed wrongful credit of servicetax amounting to Rs.36,224.00 for the period from October, 2011 to July,2012 in respect of labour services used for civil work, shifting of machinery, etc.

To know more in details find the attachment file