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TMI Blog2022 (1) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... ude proceedings as per their convenience - Indeed, the words reasonable period call for a flexible rather than a rigid construction having regard to the facts of each case, but the period in excess of two decades without the respondents sufficiently explaining as to what prevented them to conclude the proceedings has to be seen as unreasonable and the reasons assigned in the affidavit-in-reply as mere excuses for not adjudicating the show-cause notice according to law. The respondents should be granted liberty to conclude the proceedings. It is the petitioners who have approached the Court to have the impugned show-cause notice set aside. Had the petitioners not invoked the writ jurisdiction of this Court, the show-cause notice would have continued to gather dust. The petitioners, in such circumstances, cannot possibly be worse off for seeking a Constitutional remedy and thereby suffer an order to facilitate conclusion of the proceedings which, because of the inordinate delay in its conclusion, is most likely to work out prejudice to them. The sum of ₹ 2 crore which the petitioners were required to deposit in course of investigation shall be returned with interest @ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total demand of ₹ 4,99,53,772/- mentioned in the show cause notice. 3. The grievance voiced by the petitioners in this writ petition dated 15th December 2020 is that the show-cause notice has not been adjudicated during the 23 years of its existence; accordingly, a prayer has been made to set aside such notice as well as the proceedings that followed and for a direction on the respondents to return to the petitioners the said sum of ₹ 2 crore deposited under protest during the investigation together with accrued interest at the prime lending rate prevalent in 1995-1996, in accordance with law. 4. The writ petition refers to several decisions of this Court in support of the contention that proceedings having once been initiated, the same ought to be concluded within a reasonable period and what would be a reasonable period ought to depend on the facts of each case. 5. Appearing in support of the writ petition, Mr. Shroff, learned senior counsel contended that the proceedings have remained pending for close to two decades and a half, and by no stretch of imagination can pendency for such unreasonably long period be regarded as a reasonable period. 6. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 2021 and 28th January 2021. 9. Paragraphs 10 and 11 reveal what, according to the respondents, prevented them from adjudicating the showcause notice. Contents of the said paragraphs read as follows: 10. I say that the case was initially investigated by the officers of Special Investigation Cell of Preventive Commissionerate which later on got merged with the Special Investigation Intelligence Branch (Exports) which was also under the control of the Commissioner of Customs (Preventive), Mumbai. On completion of investigation, the Show Cause Notice was issued by the Commissioner of Customs (Preventive) and same was answerable to the Commissioner of Customs (Preventive) only. In July 1997, Commissionerate of Customs (Export Promotion) was created which looked after the adjudication proceedings of the said Show Cause Notice as the issue involved related to misuse of export incentive scheme. Thereafter, due to further rearrangement and re-organisation of the Customs Zones at Mumbai, Export Promotion Commissionerate was further divided into Export-I Export-II Commissionerate with realignment of work of then Export Promotion Commissionerate between them. These said two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find absolutely no justification to hold that the respondents have acted in the manner law requires them to act. 14. It is not in dispute that after the show-cause notice was issued on 30th April 1997, the petitioners were called upon for a hearing in the year 2006. At least, till 2006, it can be inferred that the issue was live. However, why no final order was passed immediately after the hearing was granted to the petitioners is not disclosed in the affidavit-in-reply. The respondents seem to have slipped into deep slumber thereafter. While the respondents right in law to initiate proceedings for violation of the provisions of the Act can never be disputed, at the same time they do not have the unfettered right to choose a time for its termination and conclude proceedings as per their convenience. Indeed, the words reasonable period call for a flexible rather than a rigid construction having regard to the facts of each case, but the period in excess of two decades without the respondents sufficiently explaining as to what prevented them to conclude the proceedings has to be seen as unreasonable and the reasons assigned in the affidavit-in-reply as mere excuses for not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat remains is the consequential relief for returning ₹ 2 crore, which the petitioners claim to have paid under protest. According to Mr. Jetly, the claim is in the nature of a money claim and cannot be entertained by the writ Court. 19. We are once again not persuaded to agree with Mr. Jetly, since the relief for return of ₹ 2 crore is not claimed as the principal relief in the writ petition but as a consequential relief to the principal relief of setting aside the impugned show-cause notice. 20. Mr. Shroff has placed before us several decisions to buttress his contention that the Courts have proceeded to award interest @ 12% per annum. Reference in this connection may be made to the decisions of the Supreme Court in Kuil Fireworks Industries v. Collector of Central Excise another, reported in (1997) 8 SCC 109, and Commissioner of Central Excise, Hyderabad v. ITC Ltd., reported in (2005) 13 SCC 689, wherein interest @ 12% per annum was awarded. 21. In Alok Shanker Pandey vs. Union of India, reported in (2007) 3 SCC 545 , it has been observed as follows: 9. It may be mentioned that there is misconception about interest. Interest is not a penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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