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2015 (8) TMI 387 - BOMBAY HIGH COURT

2015 (8) TMI 387 - BOMBAY HIGH COURT - 2015 (322) E.L.T. 429 (Bom.) - Refund of amount deposited during Investigation Delay in Adjudication Pendency of Proceedings Commissionerate learnt about the subject show cause notice only on receipt of copy of this writ petition. - Held that :- Petitioner claims quashing of proceedings and refund of amount on account of pendency of proceedings for 17 years Affidavit filed on record indicated that as reorganization of Customs Commissionerate occurre .....

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notice Therefore show cause notice hereby quashed and respondents prohibited from passing any adjudication order in furtherance thereof Liberty granted to petitioners to institute proceedings as permissible in law for recovery of sums deposited with accrued interest Decided in favour of Petitioner. - Writ Petition No. 1536 of 2014 - Dated:- 15-7-2015 - S. C. Dharmadhikari And G. S. Kulkarni,JJ. For the Appellant : Mr Darius Shroff, Sr.Adv. & Mr Rahul Jain For the Respondent : Mr Prade .....

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r a writ direction or order in the nature of mandamus or any other appropriate writ direction or order under Article 226 of the Constitution of India directing the Respondents to: (i) forthwith with law and/or cancel the show cause notice qua both the Petitioners; and (ii) Forthwith return to the Petitioners the amount of ₹ 2,07,57,074/- crores deposited under protest during investigation together with interest in accordance with law." 2. Since the earlier order has been complied with .....

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back scheme. The exports were handled by one export house agent known as M/s.Amol Shipping Agency. The first petitioner obtained 33 advance licences on the condition that the fabrics would be exported. The claim of the petitioners is that this obligation was completed and fulfilled. The licences were made freely transferable. The licences were, then, sold to various independent parties in the market. The parties obtaining the licences utilized them by importing materials without payment of duty. .....

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hat the first petitioner had been issued advance licences with the condition that they would export polyester / viscose blended fabrics. It was alleged that the second petitioner in collusion with Ashok Pokharkar of M/s.Amol Shipping Agency furnished copies showing incorrect/manipulated or false information regarding quantities, weight, composition of export goods. Thus, they wrongfully availed of the benefits of the licences by claiming fulfillment of export obligation. They secured a bond waiv .....

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' was never adjudicated though the petitioners approached the department between April, 1997 and January,2000. There are several letters during this period and the copies of some of the letters are at 'Annexures E and F'. The petitioners complained that finally by a letter dated 7.4.2014 the second respondent was requested to adjudicate upon the show cause notice. There is no reply to this letter at 'Annexure G' nor is any compliance made with the requisitions contained there .....

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0A of the Constitution of India. It is in such circumstances that this Writ Petition has been filed. 6. On the earlier occasion, we have heard Mr.Shroff, learned Senior Advocate appearing on behalf of the petitioners extensively. After hearing him and Mr.Jetly, learned Counsel appearing on behalf of the respondent-revenue, we had on 1.7.2015 passed an order. In that order we have indicated to the respondents as to why an explanation should not be demanded by the Court from them for having kept t .....

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behalf of the Revenue submits that this is the adjudicating Authority and this affidavit indicates how this adjudicating Authority has not received the record pertaining to this show cause notice for adjudication. The affidavit may be indicating that a compliance is made with the requirement of early or expeditious adjudication and 74 show cause notices were adjudicated. But as far as the subject notice is concerned, all that has been indicated is that there had been reorganization of Customs Co .....

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hich have been made to dispose of the show cause notices. The deponent states that the Department is ready and willing to adjudicate the matter provided the petitioners and who have copies of the documents in support of the allegations, cooperate and produce the same and with their assistance the show cause notice can still be adjudicated. A request is made that as there is a fraud perpetrated on public revenue, this liberty be given. 8. Mr.Jetly relied upon this affidavit and annexures thereto .....

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vt.Ltd. Vs. Additional Director of Enforcement, Mumbai, (2010 (254) E.L.T. 269 (Bom.)) ". 10. In the first decision which we have perused with the assistance of Mr.Shroff, the factual position was that the department / Revenue was seeking to adjudicate and decide the show cause notice which came to be issued to the petitioner therein in the month of January, 2004. The show cause notice was issued 13 years back, and there was no explanation as to why the show cause notice was not adjudicated .....

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ification for the inaction, this Court allowed the Writ Petition. This Court quashed the proceedings against the petitioners. 11. In the case of "Cambata Industries Pvt. Ltd." (supra) the show cause notices were issued in September, 1973 and June,1974, no action was taken by the department despite the petitioner failing to appear and failing to file reply. If for seventeen long years no steps were taken, then, the justification given for reopening the proceedings was not accepted by th .....

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laid down in this behalf. 12. After hearing both sides, we are of the view that there is no denial of the fact that the investigations were carried out in this case way back in the year 1995. If the investigations were carried out in August,1995, the show cause notice came to be issued on the conclusion thereof in March,1997, then, we do not see any reason for the Revenue / Department not passing an adjudication order for 17 long years. The petitioners cannot be faulted for having approached th .....

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sition today is that the concerned Commissionerate is unable to trace the file and locate the record. It has given no explanation as to why show cause notice was not adjudicated for 17 long years. The explanation now placed on affidavit does not inspire confidence. We do not countenance the submission and as made belatedly that the department with the assistance of the petitioners will pass a adjudication order within a time frame and it deserves that opportunity. We do not find that the stateme .....

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a direction to the department forthwith refund the deposit and with interest. 13. We can take note of the department's objection with regard to the petitioner's approaching this Court after a lapse of several years for return of money but certainly we cannot refuse any relief to the petitioners of quashing of the proceedings of the show cause notice once the legal principles are well settled. The period that has been taken in this case for adjudication of the show cause notice cannot be .....

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