Sengupta, J. - (1.) This application has been directed agianst the impugned notice of 8-3-2001, whereby the Deputy Commissioner of Customs, Appraising Section, Customs House, Calcutta, has made demand of payment of Rs. 5,10,58,869 purported to be under Section 142 of the Customs Act, 1962. At the time of admission of the writ petition, upon hearing the learned counsel I decided to hear this writ petition on the limited point whether the petitioner having been declared sick is entitled to get any protection under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 ('the Act') or not. My order dated 9-4-2001, speaks as follows : "In this matter I do not find any point to be dealt with by this Court excepting the point whether the demand notice can be proceeded with without the leave of the BIFR." Against this order no appeal has been preferred by either of the parties, so it has reached its finality. It is settled law as laid down by the Supreme Court in the judgment in Smt. Vidya Vati v. Devi Das, that any decision or finding at the interlocutory stage can operate as res judicata at the later stage of the same proceedings. By the aforesaid order by necessary implication I refused to entertain the writ petition on any other grounds. Therefore, the writ petition is to be decided on the aforesaid point only.
(2.) Mr. Ambar Majumder, the learned counsel appearing in support of the writ petition, contends, drawing my attention to the order passed by the BIFR dated 14-5-1999, that an operating agency has been appointed by the BIFR and Section 17(3) of the Act provides, amongst others, for preparing rehabilitation scheme. The said scheme 'has not yet been prepared. According to him, his client is entitled to get protection under Section 22 inasmuch as the impugned notice issued under Section 142 of the Customs Act, is a step for recovery of the alleged dues by way of distress proceedings as the language of the aforesaid section contemplates further action which is tantamount to distress proceedings. In support of his contention he has relied on,a decision of a learned single judge of this Court in Himalaya Rubber Products Ltd, v. BIFR [1993] 76 Comp. Cas. 281. In that case, he says, withholding of the sales tax declaration form as a measure of recovery of the alleged dues of sales tax was treated to be a distress and/or coercive proceeding. In the aforesaid judgment the learned judge has categorised the nature of the distress and execution proceedings. Under such circumstances, he submits that the interim order which has already been passed would suffice to give protection to his client finally in this writ petition. Mr. Chakraborty, the learned senior counsel for the respondent, with great force contends that the company cannot get any protection under Section 22. First of all, it is a mere demand notice and there is no proceeding as yet taken for recovery of the alleged dues by way of distress proceedings. Secondly, even if the aforesaid notice is termed to be a distress proceeding, still then he cannot get protection because he has filed an application before the BIFR and such application has been entertained. He contends that in an extreme case the Allahabad High Court has held in a case in Amrit Banaspati Co. Ltd. v. Commissioner (Appeals) C. Ex 2000 (119) ELT 524 that even if the scheme is prepared, the benefit of Section 22 will not be applicable in the event the amount which is sought to be recovered remains beyond the purview of the scheme. He contends, therefore, that even if the final scheme is framed in this case, still the petitioner cannot get relief under this Section as it will appear from the materials that the company is otherwise viable to pay the alleged dues of this respondent.
(3.) Having heard the respective contentions of the learned counsel, the point which has fallen for consideration in the matter is as follows : (i) Whether the issuance of notice under the aforesaid section can be termed and/or treated to be distress or execution proceedings or not ? (ii) If so, whether the petitioner can get any protection under Section 22 in view of the order passed by the BIFR appointing an operating agency under Section 17(3) ?;