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TMI Blog2017 (12) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... purports to inform the petitioner that a personal hearing is fixed on 3rd October, 2017 at 11:30 a.m. before the Commissioner of Customs, Air Cargo Complex (Import) in furtherance of this show cause notice and the petitioner must attend the same. 4. The precise grievance of the petitioner, as highlighted by its counsel Mr. Raichandani, is that the petitioner is a private limited company duly registered under the provisions of the Indian Companies Act, 1956, and the 2nd petitioner is its Director. The respondents are the Union of India and the officers exercising powers so also discharging duties under the Customs Act, 1962 read with the Rules thereunder. 5. The petitioner is holding Registration Certificate No.16 of 1996 dated 26th December, 1996 issued by the Director General of Shipping, Government of India, Ministry of Surface Transport, Mumbai. The petitioner is a Ship Repairing Unit. The petitioner imports various inputs and capital goods, namely, parts, spares, consumables etc. required to carry out repairs and maintenance activities at the vessels. The petitioner claims to be entitled for an exemption of import duty on the inputs and the capital goods imported for repairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 112(b) and Section 72 and/or Sec. 114A ibid; independently and without prejudice to each other. 38.2 NOW THEREFORE, M/s. Sanghvi Reconditioners Pvt. Ltd., are also hereby called upon to show cause to the commissioner of Customs, New Custom House, Ballard Estate, Mumbai, within 30 days of the receipt of this notice as to why: (a) the total duty amounting to Rs. 58,12,618/should not be demanded on the goods imported and cleared from Mumbai port, as detailed in Annexure 'A' to this show cause notice and recovered from them in terms of Sec. 28(1) and Section 72 of the Customs Act, 1962, read with the proviso thereof; (b) interest amount at applicable rate, demanded and should not be recovered from them on duty not paid in terms of Sec. 28AB and Section 72 ibid; (c) the imported goods as detailed in Annexure 'A' to this show cause notice totally valued at Rs. 99,10,687/which were imported and cleared from Mumbai port, should not be held liable for confiscation under Section 111(d), 111(m), and 111(o) ibid; independently and without prejudice to each other. (d) penalty should not be imposed on them under Sec. 112(a) and Section 112(b) and Section 72 and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39. M/s. Sanghvi Reconditioners Pvt. Ltd., M/s. The Shipping Corporation of India, M/s. Reliance Industries Ltd., M/s. The Great Eastern Shipping Co. Ltd., are also required to Show Cause to the respective Adjudicating Authorities as mentioned in Para 38.1, 38.2, 38.3 and 38.4 of this SCN against the duty payable by them, as detailed in Annexure A(i) to this SCN, as to why the amount totalling to Rs. 3,33,37,598.92/collectively deposited by them towards their duty liabilities (as detailed in Para 20 of this notice), should not be appropriated and adjusted towards recovery on account of duty and interest liability or penalty as may be imposed on them for irregular imports of GMDSS equipments as covered in the foregoing paras." 7. The petitioner replied to the show cause notice on 14th September, 2002. 8. The petitioner has specifically averred in paragraph 4.17 of this Petition that in the year 2004, the petitioner was called for a personal hearing after which there was no communication from the respondents. It is after more than 15 years of the issuance of the show cause notice and 13 years after the last hearing that the impugned communication has been issued. That is how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal is reported in 2003 (162) Excise Law Times 196 [A.S. Moloobhoy & Sons vs Commissioner of Customs (ADJ.), Mumbai] 12. Aggrieved and dissatisfied with this view, the matter was carried to the Supreme Court and Civil Appeal Nos. 96919693 of 2003 were pending in the Hon'ble Supreme Court. It is only when the Supreme Court rendered its final judgment on 26th March, 2015, that the Department/Revenue decided to adjudicate these notices. 13. It is contended by Mr. Jetly, based on this affidavit, that there is a practice of maintaining what is called 'call book'. In the call book, there is a record of the pending proceedings. In the instant case, there are 44 such matters in the call book. All the 44 cases would now be taken up for adjudication. A decision was taken on 18th January, 2017 to take out these matters from the call book, meaning dormant files, and thereafter to take them to their logical end. It is in these circumstances that there is no deliberate or malafide attempt on the part of the respondents in not adjudicating the show cause notice. The reasons are genuine, satisfactory and bonafide, and therefore, we must dismiss this Petition. The view tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Citedal Fine Pharmaceuticals Madras & Ors., reported in AIR 1989 SC 1771, held that in absence of any period of limitation, it is settled law that every authority should exercise the power within a reasonable period. What would be the reasonable period would depend upon the facts of each case and no hard and fast rule can be laid down in this behalf. 16. In the case of Lanvin Synthetics Private Ltd. as well, the period of 17 long years was found to be entirely unreasonable. Concededly in the present case, the show cause notice was issued on 28th March 2002. The petitioners forwarded their reply to the show cause notice after receipt thereof on 14th September, 2002. Concededly, there was a hearing in the year 2004. 17. The first affidavitinreply filed in this Petition by the Assistant Commissioner of Customs does not dispute this factual position at all. All that it tries to impress upon the Court is the seriousness of the allegations and prays for an opportunity to adjudicate the issue even now. The affidavit emphasizes that the petitioner has voluntarily deposited a sum of Rs. 3,33,37,598.92/. That was duty liability calculated in the year 1999 and much before the issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue took all these years, and after conclusion of the personal hearing in the year 2004, to pass the final order. Now allowing the Revenue to pass orders on the subject show cause notice would mean we ignore the principle of law referred above. Secondly, we also omit totally from our consideration the complaint of the petitioner that in a matter as old as of 1999, if now the adjudication has to be held, it will be impossible for them to trace out all the records and equally, contact those officials who may not be in their service any longer. Thus, they would have no opportunity, much less reasonable and fair, to defend the proceedings. That is equally a balancing factor in the facts and circumstances of the present case. 18. In the light of the above discussion, we are of the firm opinion that insofar as the petitioner before us is concerned, the Revenue/Department has not been able to justify its lapse in not adjudicating the show cause notice issued on 28th March, 2002 for more than 15 years. There may be reasons enough for the Revenue to retain some matters like this in the call book, but those reasons do not find any support in law insofar as the present petitioner's c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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