S.C. Dharmadhikari, J.(Oral) - In this Petition, hearing was concluded yesterday and the matter was closed for dictating judgment in open Court.

2. Rule. By consent, Rule is made returnable forthwith.

3. This Petition under Article 226 of the Constitution of India seeks a writ of mandamus or a writ, order or direction in the nature thereof, directing and commanding the respondents to withdraw the letter dated 7th September, 2017 issued by the 2nd respondent (Exhibit "A1" to the Petition). The impugned letter is nothing but a communication to the petitioner inviting its attention to a show cause notice bearing F. No. DRI/BZU/E/4/99, dated 28th March, 2002. The communication purports to inform the petitioner that a personal hearing is fixed on 3rd October, 2017 at 11:30 a.m. before the Commissioner of Customs, Air Cargo Complex (Import) in furtherance of this show cause notice and the petitioner must attend the same.

4. The precise grievance of the petitioner, as highlighted by its Counsel Mr. Raichandani, is that the petitioner is a private limited company duly registered under the provisions of the Indian Companies Act, 1956, and the 2nd petitioner is its Director. The respondents are the Union of India and the officers exercising powers so also discharging duties under the Customs Act, 1962 read with the Rules thereunder.

5. The petitioner is holding Registration Certificate No. 16 of 1996, dated 26th December, 1996 issued by the Director General of Shipping, Government of India, Ministry of Surface Transport, Mumbai. The petitioner is a Ship Repairing Unit. The petitioner imports various inputs and capital goods, namely, parts, spares, consumables, etc. required to carry out repairs and maintenance activities at the vessels. The petitioner claims to be entitled for an exemption of import duty on the inputs and the capital goods imported for repairs of vessels in terms of Customs notification dated 2nd June, 1998. The petitioner No. 1 clears the goods or parts or spares imported for repairs or maintenance of vessels by filing appropriate shipping bills which are assessed by the Customs Officer and thereafter approved. During the period of dispute, namely, January, 1998 to June, 1999, the petitioner imported Global Maritime Distress Safety System equipment required for repair of ocean vessels. The said equipment was imported relying upon the Customs notification (exemption notification) without payment of duty. The consignment was directly sent to the vessel. It is alleged that there was investigation carried out by the officers of the 3rd respondent on the basis of certain information made available. They searched three premises of the petitioner and seized various records and documents found at the same. A statement of the Director of the petitioner-company under Section 108 of the Customs Act, 1962, was also recorded together with other employees. After all this, the petitioner was served with a demand and that was for money. That was voluntarily complied with inasmuch as the duty liability was deposited.

6. After all this, the 3rd respondent issued the impugned show cause notice dated 28th March, 2002, alleging as under :-

"38.1 Now Therefore, M/s. Sanghvi Reconditioners Pvt. Ltd., are hereby called upon to show cause to the Commissioner of Customs, Air Cargo Complex, Sahar, Mumbai, within 30 days of the receipt of this notice as to why :-

(a) the total duty amounting to Rs. 2,06,42,669/- should not be demanded on the goods imported and cleared from Sahar Air Cargo Complex, Mumbai, as detailed in Annexure A to this show cause notice and recovered from them in terms of Section 28(1) and Section 72 of the Customs Act, 1962, read with the proviso thereof;

(b) interest amount at applicable rate, demanded and should not be recovered from them on duty not paid in terms of Section 28AB and Section 72 ibid;

(c) the imported goods as detailed in Annexure A to this show cause notice totally valued at Rs. 3,53,18,893/- which were imported and cleared through Sahar Air Cargo Complex, Mumbai, should not be held liable for confiscation under Section 111(d), 111(m) and 111(o) ibid; independently and without prejudice to each other.

(d) penalty should not be imposed on them under Section 112(a) and Section 112

(b) and Section 72 and/or Section 114A ibid; independently and without prejudice to each other. 38.2 Now Therefore, M/s. Sanghvi Reconditioners Pvt. Ltd., are also hereby called upon to show cause to the Commissioner of Customs, New Custom House, Ballard Estate, Mumbai, within 30 days of the receipt of this notice as to why :-

(a) the total duty amounting to Rs. 58,12,618/- should not be demanded on the goods imported and cleared from Mumbai port, as detailed in Annexure A to this show cause notice and recovered from them in terms of Section 28(1) and Section 72 of the Customs Act, 1962, read with the proviso thereof;

(b) interest amount at applicable rate, demanded and should not be recovered from them on duty not paid in terms of Section 28AB and Section 72 ibid;

(c) the imported goods as detailed in Annexure A to this show cause notice totally valued at Rs. 99,10,687/- which were imported and cleared from Mumbai port, should not be held liable for confiscation under Section 111(d), 111(m) and 111(o) ibid; independently and without prejudice to each other.

(d) penalty should not be imposed on them under Section 112(a) and Section 112

(b) and Section 72 and/or Section 114A ibid; independently and without prejudice to each other.

38.3 Now Therefore, M/s. Sanghvi Reconditioners Pvt. Ltd., Are Also Hereby Called Upon To Show Cause To The Commissioner Of Customs, Kolkata Custom House, Kolkata, Within 30 Days Of The Receipt Of This Notice As To Why :-

(a) the total duty amounting to Rs. 61,63,952/- should not be demanded on the goods imported and cleared from Kolkata port, as detailed in Annexure A to this show cause notice and recovered from them in terms of Section 28(1) and Section 72 of the Customs Act, 1962, read with the proviso thereof;

(b) interest amount at applicable rate, demanded and should not be recovered from them on duty not paid in terms of Section 28AB and Section 72 ibid;

(c) the imported goods as detailed in Annexure A to this show cause notice totally valued at Rs. 1,05,09,721/- which were imported and cleared from Kolkata port, should not be held liable for confiscation under Section 111(d), 111(m) and 111(o) ibid; independently and without prejudice to each other.

(d) penalty should not be imposed on them under Section 112(a) and Section 112 (b) and Section 72 and/or Section 114A ibid; independently and without prejudice to each other.

38.4 Now Therefore, M/s. Sanghvi Reconditioners Pvt. Ltd., are hereby called upon to show cause to the Commissioner of Customs, Air Cargo Complex, Chennai, within 30 days of the receipt of this notice as to why :-

(a) the total duty amounting to Rs. 7,88,096/- should not be demanded on the goods imported and cleared at Chennai Air Cargo Complex, as detailed in Annexure A to this show cause notice and recovered from them in terms of Section 28(1) and Section 72 of the Customs Act, 1962, read with the proviso thereof;

(b) interest amount at applicable rate, demanded and should not be recovered from them on duty not paid in terms of Section 28AB and Section 72 ibid;

(c) the imported goods as detailed in Annexure A to this show cause notice totally valued at Rs. 13,43,727/- which were imported and cleared through Chennai Air Cargo Complex, Chennai, should not be held liable for confiscation under Section 111(d), 111(m) and 111(o) ibid; independently and without prejudice to each other.

(d) penalty should not be imposed on them under Section 112(a) and Section 112 (b) and Section 72 and/or Section 114A ibid; independently and without prejudice to each other.

39. M/s. Sanghvi Reconditioners Pvt. Ltd., M/s. The Shipping Corporation of India, M/s. Reliance Industries Ltd., M/s. The Great Eastern Shipping Co. Ltd., are also required to Show Cause to the respective Adjudicating Authorities as mentioned in Paras 38.1, 38.2, 38.3 and 38.4 of this SCN against the duty payable by them, as detailed in Annexure A(i) to this SCN, as to why the amount totalling to Rs. 3,33,37,598.92/- collectively deposited by them towards their duty liabilities (as detailed in Para 20 of this notice), should not be appropriated and adjusted towards recovery on account of duty and interest liability or penalty as may be imposed on them for irregular imports of GMDSS equipments as covered in the foregoing paras."

7. The petitioner replied to the show cause notice on 14th September, 2002.

8. The petitioner has specifically averred in paragraph 4.17 of this petition that in the year 2004, the petitioner was called for a personal hearing after which there was no communication from the respondents. It is after more than 15 years of the issuance of the show cause notice and 13 years after the last hearing that the impugned communication has been issued. That is how the request to quash the subject communication and consequently, the show cause notice and/or a direction to the respondents to withdraw it.

9. Mr. Raichandani appearing on behalf of the petitioner, raised two-fold contentions. His first contention was that the duty liability has been voluntarily paid. All these years, despite the money being retained by the respondents, the petitioner never sought any return or refund thereof. Today also, the petitioner has not sought any such relief. Therefore, there is no prejudice to the Department. Secondly, lack of vigilance and expediency on the part of the respondents should not result in causing grave and serious prejudice to the petitioner, for the petitioner has absolutely no records available of such an old transaction. The transaction dates back to 18 years, namely, 1999. For 15 years, there was no adjudication or a final order made in the show cause notice. Therefore, the petitioner No. 1 had a reasonable belief that the proceedings are dropped. They have not maintained any records save and except the reply to the show cause notice. Today, there is nothing available so as to disprove or falsify the allegations in the show cause notice. There could be a reason enough and bona fide, for the staff working at the relevant time may not be available with the petitioners and particularly those officers whose statements were recorded. In absence of all this, the attempt to adjudicate the show cause notice should not be countenanced.

10. Amongst others, Mr. Raichandani places reliance upon a judgment and order of this Court, to which one of us (Shri S.C. Dharmadhikari, J.) was a party, in the case of Lanvin Synthetics Private Ltd. vs. Union of India, reported in 2015 (322) E.L.T. 429. The Counsel would submit that this issue is squarely covered by this judgment.

11. On the other hand, Mr. Jetly, Learned Counsel appearing for the respondents would submit that when this petition was moved before this Court, an opportunity was granted to the respondents to file affidavits to explain as to how the delay had occurred. Our attention has been invited to these affidavits by Mr. Jetly, and particularly the additional affidavit, to submit that in the case at hand, the matter rested on a view taken by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the appeals filed by one A.S. Moloobhoy and Sons. That view of the Tribunal is reported in 2003 (162) E.L.T. 196 [A.S. Moloobhoy and Sons vs. Commissioner of Customs (ADJ.), Mumbai].

12. Aggrieved and dissatisfied with this view, the matter was carried to the Supreme Court and Civil Appeal Nos. 9691-9693 of 2003 [2015 (318) E.L.T. 576 (S.C.)] were pending in the Honble Supreme Court. It is only when the Supreme Court rendered its final judgment on 26th March, 2015, that the Department/Revenue decided to adjudicate these notices.

13. It is contended by Mr. Jetly, based on this affidavit, that there is a practice of maintaining what is called call book. In the call book, there is a record of the pending proceedings. In the instant case, there are 44 such matters in the call book. All the 44 cases would now be taken up for adjudication. A decision was taken on 18th January, 2017 to take out these matters from the call book, meaning dormant files, and thereafter to take them to their logical end. It is in these circumstances that there is no deliberate or mala fide attempt on the part of the respondents in not adjudicating the show cause notice. The reasons are genuine, satisfactory and bona fide, and therefore, we must dismiss this petition. The view taken in the judgment of the Division Bench, is therefore distinguishable on facts, according to Mr. Jetly.

14. In rejoinder, Mr. Raichandani would submit that both the affidavits do not disclose as to how in the case of the 44 persons including the petitioner, was the Revenue prevented from adjudicating the show cause notices for more than 15 years. During pendency of the proceedings before the Supreme Court, in a distinct litigants case, there was no restraint on the Revenue/Department to adjudicate the subject show cause notice. Therefore, this reason is not enough to enable the respondents to cause dismissal of the present petition.

15. With the assistance of Mr. Raichandani and Mr. Jetly, we have perused the petition and the annexures thereto. We have also perused the consistent view taken by this Court, based on which the judgment in the case of Lanvin Synthetics Private Ltd. (supra) was rendered. The obligation on the respondents to adjudicate the show cause notices with expediency has been repeatedly emphasized. The decisions in the cases of Shirish Harshavadan Shah vs. Deputy Director, E.D., Mumbai [2010 (254) E.L.T. 259] and Cambata Indus. Pvt. Ltd. vs. Additional Dir. of Enforcement, Mumbai [2010 (254) E.L.T. 269] underline as to how show cause notices issued decades back cannot be allowed to be adjudicated by the Revenue merely because there is no period of limitation prescribed in the statute to complete such proceedings. The adjudication proceedings serve a definite purpose. The object is to secure and recover public revenue. The larger public interest therefore requires that the Revenue and its officials adjudicate the show cause notices expeditiously and within a reasonable time. The term reasonable time is flexible enough and would depend upon the facts and circumstances of each case. There is no rigidity or inflexibility, in the sense, a time is prescribed in the judgments of this Court and that is termed as reasonable. Thus, what would be a reasonable time depends upon the facts and circumstances of each case. Surely, a period of 13 years as was found in the case of Shirish Harshavadan Shah (supra) and equally, long period in the case of Cambata Indus. Pvt. Ltd. (supra) was not termed as reasonable. This Court, relying upon the judgment of the Honble Supreme Court in the case of Government of India vs. Citedal Fine Pharmaceuticals, Madras and Ors., reported in AIR 1989 SC 1771 [LQ/SC/1989/349] = 1989 (42) E.L.T. 515 (S.C.), held that in absence of any period of limitation, it is settled law that every authority should exercise the power within a reasonable period. What would be the reasonable period would depend upon the facts of each case and no hard and fast rule can be laid down in this behalf.

16. In the case of Lanvin Synthetics Private Ltd. as well, the period of 17 long years was found to be entirely unreasonable. Concededly in the present case, the show cause notice was issued on 28th March, 2002. The petitioners forwarded their reply to the show cause notice after receipt thereof on 14th September, 2002. Concededly, there was a hearing in the year 2004.

17. The first affidavit-in-reply filed in this petition by the Assistant Commissioner of Customs does not dispute this factual position at all. All that it tries to impress upon the Court is the seriousness of the allegations and prays for an opportunity to adjudicate the issue even now. The affidavit emphasizes that the petitioner has voluntarily deposited a sum of Rs. 3,33,37,598.92/-. That was duty liability calculated in the year 1999 and much before the issuance of the show cause notice. It may be that the amount was not received in full and final settlement of the Departments demand. However, there was an equal obligation, once the show cause notice was issued on 28th March, 2002, to have adjudicated it expeditiously. The reasons assigned from paragraph 14 onwards would indicate that there were personal hearings in relation to all the notices. There may be voluminous records and there may be number of persons who have allegedly violated the provisions of law. However, the affidavit proceeds to state that there was a personal hearing held on 25th March, 2004. A written brief was submitted by the petitioners and they relied upon the order of the CESTAT in the case of A.S. Moloobhoy and Sons (supra). However, the Revenue found that there were adjournments sought but in the meanwhile, the Department/Revenue challenged the judgment of the CESTAT in the case of A.S. Moloobhoy and Sons in the Supreme Court of India. Thereupon, all the matters were sent in the dormant list/call book. It may be a procedural aspect for the Department/Revenue. Unless and until the Revenue establishes that there is a law mandating taking cognizance of these procedural requirements or these procedural requirements have been engrafted into the applicable legislation so as to enable the Revenue/Department to seek extension of time, in writ jurisdiction, we are not obliged to take notice of these procedural delays at the end of the Revenue/Department. Accepting that case would defeat the rule of law itself. That would also result into taking cognizance of extraneous matters and basing our conclusion thereupon would then mean violating the principles laid down in the binding judgments of this Court and the Honble Supreme Court. That the matters of present nature have to be concluded expeditiously and within a reasonable time. We do not therefore find the explanation from paragraphs 14 to 18 of this affidavit to be enough for granting the Revenue an opportunity to now adjudicate the subject show cause notice. We have not found from any of these averments and statements in the affidavit that there was a bar or embargo, much less in law for adjudicating the show cause notice. This Court indulged the Revenue enough and by giving them an opportunity to file an additional affidavit. The additional affidavit as well, does not indicate as to why the Revenue took all these years, and after conclusion of the personal hearing in the year 2004, to pass the final order. Now allowing the Revenue to pass orders on the subject show cause notice would mean we ignore the principle of law referred above. Secondly, we also omit totally from our consideration the complaint of the petitioner that in a matter as old as of 1999, if now the adjudication has to be held, it will be impossible for them to trace out all the records and equally, contact those officials who may not be in their service any longer. Thus, they would have no opportunity, much less reasonable and fair, to defend the proceedings. That is equally a balancing factor in the facts and circumstances of the present case.

18. In the light of the above discussion, we are of the firm opinion that insofar as the petitioner before us is concerned, the Revenue/Department has not been able to justify its lapse in not adjudicating the show cause notice issued on 28th March, 2002 for more than 15 years. There may be reasons enough for the Revenue to retain some matters like this in the call book, but those reasons do not find any support in law insofar as the present petitioners case is concerned. Merely because there are number of such cases in the call book does not mean that we should not grant any relief to the petitioner before us.

19. Hence, the Writ Petition succeeds. We direct that the subject show cause notice cannot be adjudicated further and all proceedings in pursuance thereof are quashed and set aside. However, we at once clarify that this order and direction is applicable and restricted only to the case of the petitioners before us. No benefit of the same can be derived by other parties for they are not before us. The Revenue is free to take such steps as are permissible in law as against the others. Rule is accordingly made absolute. There will be no order as to costs.