9911796707
TMI Blog2022 (8) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... lso family members of Petitioner No.2. (Petitioner No.1 and Petitioner No.2) are hereinafter referred to as "Petitioners"). 3. Petitioners are challenging a show cause notice dated 27/06/1997 issued by Respondent No.1 on the ground that (a) Respondent No.1 did not have jurisdiction to demand duty under Section 28 of the Customs Act, 1962; and (b) the show cause notice, not having been adjudicated by Respondent No.2 and/or his predecessors for a period of 24 years, although Petitioners have filed replies and attended personal hearing, has become stale and has to be quashed and set aside. Mr. Shroff pressed this second ground only and did not make any submission on the first. 4. M/s. Rachana Enterprises was actively engaged in the business of exports and imports during the period of 1993-1995 and was holding a valid Import Export Code (IEC) issued by the Director General of Foreign Trade (DGFT). M/s. Rachana Enterprises had exported various consignments of Polyester/Viscose Fabrics under Duty Exemption Entitlement Scheme/Advance Licenses. All these shipments and the documents relating to the shipments were scrutinized and examined and after satisfying that the same conform t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice. Petitioners once again requested for a re-test. Petitioners submitted that re-test was necessary because reliance has been placed on test report issued in 1996 for the export that was made in 1993. Petitioners also requested for leave to cross examine certain persons on whose statements/reports reliance had been placed in the show cause notice. Petitioner made further detailed submissions to Respondents, and according to petitioners, they made out a case that import and export are untainted. This was followed by further communication from Petitioners to Respondents. Finally by a letter dated 25/06/2012, i.e., 15 years after the show cause notice was issued and reply to show cause notice was filed, Petitioners were informed by the office of Commissioner of Customs (EP) that DGCEI had been requested to look into the release of the records of Petitioners that were taken over by Respondents on 02/08/1995. In the meanwhile, Petitioners attended personal hearing on 16/12/2009. Thereafter, Petitioners attended personal hearing on 06/09/2012 and later again on 13/08/2020. By a letter dated 17/08/2020 Petitioners placed on record the submissions made at the personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the show cause notice is issued must know where it stands after issuance of show cause notice and submission of reply, and even after attending personal hearing. A party cannot be faulted for taking the view that its reply submitted during the personal hearing has been accepted and the authorities have given a quietus to the matter. Mr. Shroff submits that such delayed adjudication wholly attributable to the revenue would be in contravention of procedural fairness and thus violative of the principles of natural justice and hence is unfair and cannot be sustained. Sudden resurrection of the show cause notice after 25 years cannot be justified. 12. Mr.Shroff, in support of his submissions, relies upon the following judgments:- 1] Premier Ltd. vs. Union of India 2017 (354) E.L.T.365 (Bom.) 2] Union of India vs. Premier Ltd.2018 (360) E.L.T. A181 (S.C.) 3] Raymond Ltd. vs. Union of India 2019 (368) E.L.T. 481 (Bom.) 4] Parle International Ltd. vs. Union of India 2021 (375) E.L.T. 633 (Bom.) 5] Sanghvi Reconditioners Pvt. Ltd. vs Union of India 2018 (12) G.S.T.L. 290 (Bom.) 6] Reliance Transport and Travel Pvt.Ltd. vs. Union of India, The Principal Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners also did not arise. 15. Though Mr. Shroff relied upon 10 judgments, we will refer to only three of those judgments. In Premier Ltd. (supra) paragraphs 10 to 13 read as under :- "10. The second aspect which requires elaboration is, if the understanding of the Revenue is that it has to wait endlessly for the assessee to appear and make submissions, it is not the assessee's right to delay the matter. There is no vested right in prolonging the proceedings and none can claim that the law permits this course. Adjournments may be sought frequently but they are not to be granted liberally. That gives impression that the Revenue is not interested in proceeding with the matter, or rather has a vested interest in assisting the assessee. In the case of Sangram Singh Vs. Election Tribunal, Kotah and Another, reported in AIR 1955 SC 425, the Hon'ble Supreme Court was required to explain as to what is an ex parte order. 11. Therefore, once the assessee is given sufficient opportunity to remain present, to argue his case, either by himself or with the assistance of an Advocate, then, the Revenue would be justified, if the assessee is prolonging the matter and deliber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been put to notice that the proceedings were kept in abeyance. In fact, this Court, in the case of Bhagwandas Tolani (supra) decided as far back as 1982, has held that even if there is no time limit provided in the statute for adjudication proceeding, yet it is not permissible to commence adjudication proceeding after a long period of 10/15/20 years, particularly when the delay is not on account of any default on the part of the answering party. It further held that re-opening of an adjudication proceeding after a long time would cause serious prejudice to the parties, as in the meantime, the relevant records may have been misplaced, the persons who were in charge of the affairs relating to issue raised in the show cause notice may no longer be available. Further, in Cambata Industries Pvt. Ltd. v. Additional Dir. of Enforcement, Mumbai (2010) 254 E.L.T. 269 (Bom.), this Court held that in absence of any fault on the part of the petitioners, it is not open to the Revenue to re-open proceedings after long delay without justifiable reasons. In Hindustan Lever Limited V/ s. Union of India, 2011 (264) E.L.T. 173 (Bom.) , this Court has observed as under :- " 15. ................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, cannot be justified." 18. Therefore, it has been reiterated that where show cause notices were issued but adjudicating order has not been passed for such a long period, in this case almost 25 years, such show cause notices cannot be kept pending. Such delayed adjudication wholly attributable to the revenue would be in contravention of procedural fairness and thus violative of the principles of natural justice. The action, which is unfair, and in violation of principles of natural justice cannot be sustained. Various judicial pronouncements have taken a view that the weight of judicial pronouncements leaned in favour of quashing the proceedings if there had been an undue delay in deciding the same. In the absence of any period of limitation it is incumbent upon every authority to exercise the power of adjudication post issuance of show cause notice within reasonable period. 19. As held by this Court in Sanghvi Reconditioners Pvt. Ltd. (supra), that was relied upon by Mr.Shroff, when the revenue keeps the show cause notice in call book, then it should inform the parties about the same. It serves two purposes, i.e., (a) it puts the party to notice that the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have continued to gather dust. 22. In the circumstances, we are inclined to allow the Petition. 23. Mr. Shroff requests that Respondents should be directed to refund the amount of Rs.30,00,000/- (Rupees Thirty Lakhs only) that Petitioners had deposited in August 1995 together with interest thereon at 12% p.a. from the date of deposit up to the date of refund. Ms. Majumdar certainly opposes refund being granted or any interest being granted on refund. 24. In our view, for reasons made out by us, not only the impugned show cause notice should be quashed, Petitioners are also certainly entitled to refund of amount of Rs.30,00,000/- (Rupees Thirty Lakhs only). 25. Mr. Shroff relies upon paragraphs 20, 21 and 22 of Sushitex Exports (India) Ltd. (supra) read with clarificatory order dated 04/02/2022 passed in the said matter to justify that Petitioners are entitled to interest at 12% p.a. from the date of deposit by Petitioners. Paragraphs 20, 21, 22 as clarified by order dated 04/02/2022 (bold portion in Para-22) read as under :- 20. Mr. Shroff has placed before us several decisions to buttress his contention that the Courts have proceeded to award interest @ 12% per annum. Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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