Important Point: Once the assessee is given sufficient opportunity to remain present, to argue his case, either by himself or with the assistance of an Advocate, then, the Revenue would be justified, if the assessee is prolonging the matter and deliberately, to pass orders in his absence.

S.C. DHARMADHIKARI, J.

1. In this writ petition, the only relief that the petitioners seek is of a declaration that the proceedings pursuant to a Show Cause-cum-Demand Notice dated 22-7-1991, issued to them, be declared as non est and the Notice itself be quashed and set aside for it refuses to bind the petitioners after such an unexplained and enormous delay. The writ petition is filed on 11-11-2016 containing the above two declarations in prayer clauses (a) and (b).

2. We had on the earlier occasion issued notice on this petition with the understanding to the parties that it would be disposed of finally. Hence, we grant rule. The respondents waive service. By consent, the writ petition stands disposed of in terms of this Judgment.

3. It is undisputed that the petitioners carry on business of manufacture of motor vehicles and parts thereof. They availed of what was then prevailing as modvat credit of duty paid on inputs. A classification list was filed. That list was processed and it was discovered that the petitioners have mis-declared certain goods and that is how they allegedly evaded central excise duty in the sum of Rs.32,31,366.25/- for the period 1-7-1986 to 28-2-1988. Hence, a Show Cause Notice was issued in 1991.

4. It has not been adjudicated till date. Explanation for not adjudicating the same is sought to be provided in para 3(C) of the affidavit in reply which reads as under:

“(C) …... A Personal Hearing fixed by the Commissioner on 15.10.1997 to decide the case. However, the assessee vide letter dated 08.10.1997 requested for Adjournment of the case. As requested by the assessee personal Hearing was refixed on 01.12.1997. Assessee filed written submission along with power of Attorney in favour of Matubai Jaitram on 01.12.1997 and also made further submissions on 08.12.1997. Meanwhile the SCN was transferred to Call Book being CERA objection was contested. During the review of call book cases it was observed that the objection of CERA was settled in the year 2008. However, a point was raised as to CERA has closed the Para or Ministry has admitted the objection and later on the Para was closed. This issue is still to be settled and therefore, the matter was continued to be kept in call book.”

5. We have carefully perused this paragraph and the explanation that is provided subsequently. Concededly, the Show Cause Notice is dated 22-7-1991. Even if we are to proceed on the footing that the assessee delayed the matter, what is evident from the affidavit in reply is that the assessee offered an explanation to the Show Cause Notice on 11-3-1992. From that day nothing was done and the records indicate that personal hearing was fixed by the Commissioner on 15-10-1997. The assessee may have requested for an adjournment of this hearing but the personal hearing then was re-fixed on 11-2-1997. The Revenue compounds the matter, when the assessee had already filed written submissions and further submissions in December, 1997 itself, by sitting over the files. We do not have any explanation provided for the lapse on the part of the Revenue in not passing any orders though it was empowered in law to do so. It could have passed an order on the footing that the available material includes written submissions of the petitioner/assessee. The Revenue is aware of the proceedings and its pendency. Hence nothing prevented it from 1997 onwards and within a reasonable time to pass a final order. That has not been passed and what the petitioner/assessee apprehends is that it may be passed now and to cover up this lapse. The petitioner/assessee before us has filed this petition on the footing that an attempt is made to pass an order belatedly and we should not encourage it. If that is encouraged, there would be uncertainty and no predictability or end in sight to such proceedings. The petitioners had requested that they be provided with a copy of the Show Cause Notice because in their record nothing was available. They state that they c