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TMI Blog2007 (7) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... endered thereon by the Adjudicating Officer. The revival of the proceedings by notice received on 31st July, 2006 is bad as it would occasion serious detriment and prejudice to the petitioners on account of long passage of time and would be clearly violative of natural justice and would consequently be void. It was further set out that the employees of the petitioner who were charged for the alleged acts of contravention under the FERA have since died or resigned or retired from the service of the petitioner and except for two employees are not in the employment of the petitioners. The petitioners have also no whereabouts of the employees who retired or resigned. It is also pointed out that the records pertaining to the transaction relating to the said show cause notice are not traceable and in the absence of the relevant records the applicants ability to defend their case effectively would be hampered. The delay, it is submitted, was solely attributable to the Department and due to no fault of the petitioners. It was set out that it is now well settled by judicial pronouncements that the stale matter cannot be allowed to be reopened. Reliance was placed on various judgments. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were being charged as persons who were in charge of looking after the day-do-day activities of the bank and they have ben charged in their personal capacity as individual. It was also noted that there was stay in passing any order against the employees of the bank and as such the Adjudicating Authority was helpless and had to wait till the decision of the Honourable Supreme Court. Earlier the adjudication proceedings against the employees had been stayed by this Court. It was then pointed out that as soon as the S.L.P. filed before the Supreme Court was disposed of and the decision received the matter was posted for fresh hearing. It is, therefore, submitted that there is no hardship or prejudice caused to the petitioners. Adverting to the contention that the records pertaining to the transaction are not traceable and the absence of the relevant record has severely hampered the case of the petitioners to defend their case effectively, the contention was rejected. The Adjudicating Authority noted that the petitioners had been the main party to the litigations since the year 1994 and the matter has attained finality only in the year 2006. The petitioners had been filing various aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice has been issued. The mere fact that the illegalities were subsequently not repeated is no answer. At any rate we do not find that such an objection was raised in the preliminary objection which was raised before the Adjudicating Authority. In that light the present contention as raised has to be rejected. 6. The question really is whether the respondents consciously did not proceed with the adjudication proceedings and as such on account of the lapse of time, it can be said that the proceedings have become stale and any further continuance would be arbitrary. In support of the contention that the proceedings should be quashed and should not be proceeded with the learned Counsel has principally relied on the judgment of the Division Bench of this Court in Universal Generics Pvt. Ltd. vs. Union of India, 1993 (68) E.L.T. 27 (Bom). In that case there was a delay of 10 years completion of the adjudication proceedings. The consignment of cod liver oil imported had already been cleared by importer ten years before. It was therefore, held that the show cause notice as regards confiscation of imported goods became redundant. It is in this context that the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only to the actual levy of the duty which is due to the Department and not to any levy of interest or penalty. 7. In the light of the above facts and the decisions cited, it is clear that there is no hard and fast rule as to when the proceedings can be said to be stale. It depends on the facts of each case. Can it be said that the proceedings pending before Adjudicating Authority are stale and hence liable to be quashed? It is not the case of the petitioners that the show cause notice was issued after a long lapse of time. The contention is that the hearing was concluded in 1997 and no order was passed and the proceedings are sought to be re-opened in the year 2006. This, it is submitted, is arbitrary as most of the employees who were with the petitioner are either dead have resigned or retired except for two employees and secondly the records are not available after such long time and that would hamper their defence. 8. From the facts on record we may note that the show cause notice was first issued to the petitioner on 25th June, 1993. The petitioner filed Writ Petition No.509 of 1994 before this Court. An interim order came to be passed on 15th March, 1994 which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court, the respondents herein had moved various applications for variation of the order. Those applications were either withdrawn or the reliefs as prayed for were not granted. In the affidavit filed by A.G. Wasnik, Assistant Director the various steps taken have been set out and the applications/orders are annexed. The stand of the respondents has been that it was not possible to proceed with the proceedings for adjudication alone against the petitioner without continuing with the proceedings against the employees. It cannot be said that this contention of the respondents is not bonafide or devoid of merit. The petitioners also throughout the pendency of the proceedings before this Court or the Supreme Court did not challenge the continuance of the proceedings on the ground that they were stale or that the hearing had been concluded in 1997 On the contrary as observed by us earlier before the Supreme Court one of the reliefs which was sought was a writ by way of prohibition which was rejected. In other words the petitioners were conscious of the fact that there was no act or omission on the part of the Respondent Authorities or that their conduct was blameworthy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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