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TMI Blog2015 (8) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pradeep S Jetly ORDER P.C. By this Writ Petition filed under Article 226 of the Constitution of India, the petitioners are seeking the following reliefs: (a) For a writ of certiorari, or a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the show cause notice and after considering the same quashing and/or setting aside the same. (b) For a writ of mandamus, or 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 ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal countries without payment of duty, there was a loss caused to the exchequer and that is why a show cause notice was issued demanding a sum of ₹ 2,83,59,851/- and to be adjusted against the deposit. 4. The complaint of the petitioners is that this show cause notice a copy of which is at 'Exhibit D' 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 therein. The petitioners relied upon the information obtained under the Right to Information Act, 2005, disclosing that the office of the second respondent could not trace any document or file and therefore, nothing can be intimated to the petitioners. 5. The petitioners, therefore, complained that if for seventeen long years the matter has remained unadjudicated, then, retention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 to submit that the respondents deserve an opportunity to adjudicate the show cause notice and as the delay has been satisfactorily explained. 9. However, Mr.Shroff, learned Senior Advocate brings to our notice the two decisions rendered by two Division Benches of this Court, one in the case of Shirish Harshavadan Shah Vs. Deputy Director, E.D., Mumbai, (2010 (254)E.L.T. 259 (Bom.)) . The second decision is also of the same Division Bench rendered in the case Cambata Industries Pvt.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and there was no information available with regard to this show cause notice. The admitted position 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 statements made on affidavit are enough to grant such opportunity. If the law postulates early end to such proceedings and there is no period of limitation prescribed, does not mean that the proceedings initiated could be concluded at the sweet will and fancies of the department. The department should not have blamed the petitioners for having approached this Court belatedly, but the department must appreciate that the petitioners are seeking two reliefs one is for quashing of proceedings and secondly, a direction to the department forthwith refund the deposit and with interest. 13. We can take note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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