9911796707
TMI Blog2010 (10) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... onable period - Decided against the assessee. - 2395 of 2006 - - - Dated:- 6-10-2010 - V.C. Daga and R.M. Savant, JJ. REPRESENTED BY : Shri R.G. Sheth i/by M/s. R.G. Seth Co., for the Petitioner. Shri P.S. Jetly, for the Respondent. [Judgment per : R.M. Savant, J.]. - By the above Petition, filed under Article 226 of the Constitution of India, the Petitioners take exception to the order dated 30-9-2005 passed by the Respondent No. 2 above-named by which order the applications filed by the Petitioners for fixation of brand rate of draw-back for export of tea were rejected and the letters dated 19-1-1987 and 20-1-1987 which were the revocation letters issued in respect of brand rate letters No. (Bom.-305) dated 4-4-86 and brand rate letter (Cal.-57) dated 22-7-86 were confirmed and resultantly recovery of the drawback amount with appropriate interest was ordered. 2. The factual matrix involved in the above Petition can be stated thus :- The Petitioners are inter alia engaged in the activity of manufacture and export of various goods. The said activity of export is carried out by the Petitioners in its capacity as a trading house whereunder the Petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as drawback. In view of the withdrawal of Notification No. 166/81 by Notification No. 9/85, the Petitioner on 31-5-1985 submitted an application for drawback to the Collector of Customs and Central Excise, Pune for fixation of drawback rate in respect of export of tea effected by the Petitioners. By the said application, the Petitioners claimed drawback in respect of duty paid at the garden stage and various packings of the blended tea. The said application of the Petitioners was considered by the Respondent No. 1 and the same was sent for verification by the Customs/Central Excise Department and after perusing the verification report the Respondent No. 1 had allowed drawback at the rates which was conveyed to the Petitioners vide letter dated 4-4-1986 issued by the Respondent No. 1. Thereafter Respondent No. 1 issued a clarification to the effect that rate of drawback per one Metric Tonne shall be in respect of net weight of tea content. During the period February 1985 to November 1985, the Petitioners exported substantial quantities of tea and earned valuable foreign exchange to the tune of approximately Rs. 10.20 crores. In view of the drawback rate fixed by the Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the show cause notice. The Respondents were further directed to adjudicate the notices/communications after granting hearing to the Petitioners and to pass speaking orders on or before 31st August 2003. The Petitioners vide letter dated 6-8-2003 filed written submissions in respect of the issue arising in the said Writ Petition No. 2611 of 1987. In terms of the said order dated 11-3-2003, the Respondents were to adjudicate the show cause notices by 30-8-2003. However, since the Respondents could not comply with the time limit stipulated by this Court, the Respondents had filed Notice of Motion No. 110 of 2004 for seeking extension of time to comply with the directions as contained in the order dated 11-3-2003. In the said Notice of Motion, an order came to be passed by the Division Bench of this Court on 15-3-2004 directing the Respondents to pass an order within six weeks from the date of the said order i.e. 15-3-2004 and accordingly the said Notice of Motion came to be disposed of. Though the original order dated 11-3-2003 mandated hearing to be granted to the Petitioners, the officer on Special Duty (Drawback) of the Respondents purported to pass an order on 15-4-2004 without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were enjoined to dispose of the issue arising out of the said Writ Petition. The issue before the Respondents in terms of the order dated 11th March, 2005, never pertained to Writ Petition No. 992 of 1987 and the order dated 24-4-1987 passed therein. In fact, till the said Writ Petition No. 2611 of 1988, no effective steps were taken by the Respondents to comply with the said order dated 24-4-1987 passed in Writ Petition No. 992 of 1987. It is further required to be noted that though the detailed submissions were filed by the Petitioners vide their letter dated 17-11-1988 in respect of the issue arising out of Writ Petition No. 992 of 1987, no order was passed by the Respondents on the said issue. It was only after the said Writ Petition No. 2611 of 1988 came to be disposed of by order dated 11-3-2003 that Petitioners received a communication dated 4-7-2003 from the Respondents by which communication the Petitioners were asked to file a further reply in connection with the issue arising out of Writ Petition No. 992 of 1987 in order to decide the matter at the earliest. The Petitioners had objected to the said communication by their letter inter alia pointing out to the Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hearing which was as regards the issues in Writ Petition No. 2611 of 1988, could never been decided without there being any reference to the same in the body of the impugned order except in the operative part. The learned counsel for the Petitioners submitted that there has been considerable delay in adjudicating the issues involved in Writ Petition No. 992 of 1987. The said Writ Petition was decided by an order dated 24-4-1987 and the Petitioners were heard for the first time on 22nd November 1988 by the concerned officer of the Respondents, however, no order was passed. Thereafter the issue involved in the said Writ Petition was admittedly taken up for hearing which had commenced purusant to the order passed in Writ Petition No. 2611 of 1988 and the extension of time that was granted to the Respondents to comply with the same. The learned counsel for the Petitioners submitted that the hearing which was held, ought to have been held in respect of the issues arising out of Writ Petition No. 2611 of 1988 as the applications for extension of time were only in respect of the issues arising out of the said Writ Petition and never was there any mention of the issues arising in Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19-1-1987, 10-2-1987 and 13-3-1987 until the representation made by petitioner No. 1 on March 13, 1987 is decided after a proper hearing and by a speaking order. Rule in the above terms made absolute, with costs. There is no dispute that the said Writ Petition was filed against the action of the Respondents in retrospectively withdrawing duty drawback granted to the Petitioners. Pursuant to the said order, hearing before the officer was fixed on 2-11-1988. However, the matter thereafter was never heard by the concerned officer of the Respondents. Whilst the said proceedings relating to the consideration of the issues arising in Writ Petition No. 992 of 1987 were pending, the Petitioners were faced with eight communications whose dates have been mentioned in the earlier part of this Judgment. By the said communications the Petitioners applications for fixation of brand rate were rejected by the Respondents. This, as mentioned above, was resulted in Petitioners filing Writ Petition No. 2611 of 1988. It appears that the said Writ Petition was admitted by this Court, however, no interim reliefs were granted. The said Writ Petition ultimately came to be disposed of in terms of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 11-3-2003, the Respondents had prayed for extension of time by filing Notice of Motion No. 110 of 2004 which motion was allowed by this Court by order dated 15-3-2004 and period of six weeks was granted from 15-3-2004 for compliance of the order dated 11-3-2003 passed in Writ Petition No. 2611 of 1988. Thereafter it appears that an order came to be passed on 15-4-2004, by the authorities which came to be challenged by the Petitioners by filing Writ Petition No. 548 of 2005. The said Writ Petition came to be disposed of by setting aside the order dated 15-4-2004 as also the letter impugned in the said order dated 12-8-2004 and the Respondent No. 2 therein was directed to give fresh personal hearing within eight weeks from the said date and pass an order in terms of the Minutes of Order dated 11-3-2003 passed in the said Writ Petition No. 2611 of 1988. After the order dated 19-4-2005, which came to be passed in Writ Petition No. 548 of 2005, the Petitioners received communication dated 13-7-2005 from the Respondent No. 1 in its Ministry of Finance. What is relevant to note from the point of view of the present Petition is that in the said communication subject matter was the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -57) dated 22-7-86. As mentioned herein above, in so far as issues in Writ Petition No. 992 of 1987 were concerned, the Petitioners were asked to remain present for the hearing on 2-11-1988, but thereafter no hearing had taken place in respect of the issues in the said Writ Petition No. 992 of 1987. It would also be relevant to note that there was no impediment in the Respondents adjudicating upon the issues in the said Writ Petition No. 992 of 1987 as in Writ Petition No. 2611 of 1988 this Court had only issued Rule but had not granted any interim reliefs. Therefore, assuming that the issues arising in Writ Petition No. 992 of 1987 and the issues arising in Writ Petition No. 2611 of 1988 are two sides of the same coin. In our view, the Respondents could have surely adjudicated upon the issues arising in Writ Petition No. 992 of 1987 and could not have waited till the year 2005 i.e. for a period of 17 years to adjudicate upon the said issues. 14. We find considerable merit in the submission of the learned counsel for the Petitioners that the impugned order is passed in breach of the principles of natural justice. Firstly as recorded by us earlier, the authorities had proceeded on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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