Sahidullah Munshi, J. - (1.) In this writ petition, the petitioner has challenged a Memo being No. T4/18-C/97-XX dated 3rd June, 1998 and lso another Memo being No.T4/XX/18-C/97/SCN/1258 (P), dated 6th July, 2016, issued by the Assistant Director for Special Directorate (E.R.), Directorate of Enforcement, whereby the petitioner was sought to be informed that final opportunity was being extended to him to take complete inspection of the relied upon documents once again on 11th July, 2016 at 11:30 a.m. before the Assistant Director (Adjudication). It was indicated in the said Memo that inspection would be a allowed to the persons who will be authorized by the Government. If the inspection process was not completed by the given date, the case would be decided ex parte on its merit as the matter was getting delayed for a long time. The writ petitioner is aggrieved by the reopening of an issue which was closed long back for no fault on the part of the petitioner. It is the contention of the petitioner that, although, the petitioner rendered all co-operation at all stages, but the authority delayed the proceeding unnecessarily and after a lapse of 20 years they wanted to reopen the same once again when the petitioners never thought it fit to preserve the documents and the evidence which were available might have been destroyed and/or not available at the present moment. On such consideration, when the matter was initially moved, an interim protection was granted by an order dated 16th August, 2016 and while passing the interim order, this Court elaborately discussed the necessity of granting interim protection. The said interim order was never challenged by the authority. Direction was issued to file affidavit-in-opposition. Affidavit-in-opposition has been filed. Now, the matter has been taken up for final consideration on affidavits. To better understand the case, following dates are to be taken note of : JUDGEMENT_95_LAWS(CAL)12_2018_1.html
(2.) The petitioner in this writ petition has contended that a show-cause emorandum No.T-4/18-C/97-SCN-XX, dated 3rd June, 1998 (hereinafter referred to as the 'SCM-XX') was issued under Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'FERA'), now repealed. It is contended that reply to show-cause was duly submitted and no further objection was raised thereafter. It is the grievance of the petitioner that all on a sudden, after a lapse of 18 years (the writ petition was filed on 1st August, 2016), the said SCM-XX issued the impugned letter dated 6th July, 2016, mentioned hereinbefore being Annexure P-9 to this writ petition. The petitioner challenged the said Memo, inter alia, on the grounds that the respondents are not authorized to reopen the case after such a long period particularly when the evidence those were available at that material point of time, cannot be collected and/or evidence those were sought to be furnished, have been destroyed by a lapse of time. The petitioner is also aggrieved by the attempt made by the authority asking personal hearing and continuation of the adjudication proceedings which by now have been vitiated by inordinate delay. It is also the contention that such personal hearing and continuation of the adjudication proceedings are specifically barred by Foreign Exchange Management Act, 1999 (hereinafter referred to as 'FEMA'). It is also the grievance of the petitioner that such personal hearing and continuation of the adjudication proceedings are now being sought to be held even without the production of the originals of the documents sought to be relied upon by the respondents. According to the petitioners, the transactions which are subjectmatter of SCM-XX took place during the period 1990-96, more than 20-25 years back.
(3.) Against the purported attempt of the respondents by their letter No. T4/XX/18-C/97/SCN 1258(P) dated 6th July, 2016, planning to proceed with the proposed adjudication, although, the petitioner no.1 had repeatedly pointed out that originals of a large number of RUDs were not available with the respondents. Against such purported attempt the petitioner filed this writ petition before this Hon'ble Court and relied on various decisions at the interim stage and submitted before the Court that the authority cannot assume jurisdiction over the matter. In view of the ratio decided in those decisions an interim order was passed on 16.08.2016 against which reportedly no appeal has been preferred by the said authority. Mr. Roy appearing for the respondents submitted that no such appeal has been preferred. Therefore, the petitioner has prayed for an order of mandamus commanding the respondents and each of them, their servants, agents, not to proceed any further with the adjudication of SCM-XX dated 3rd June, 1998 and to stop the said proceeding forthwith and consequentially to rescind and/or quash and/or cancel the same SCM-XX dated 3rd June, 1998. Since the letters dated 6th July, 2016, 11th July, 2016 and 22nd July, 2016, all arose from the impugned SCM-XX dated 3rd June, 1998 as a consequential prayer, the petitioner has also prayed for quashing of the said notices dated 6th July, 2016, 11th July, 2016 and 22nd July, 2016. In support of his case the Mr. Choudhuri, learned Senior Advocate for the petitioners, has relied on the following decisions : Bhagwandas S. Tolani Vs. B.C. Aggarwal & Ors. reported in, 1983 12 ELT 44 (Bom.); State of Punjab & Ors. - Vs. Bhatinda District Cooperative Milk Producers Union Ltd. reported in, 2007 11 SCC 363; Delhi Development Authority Vs. Ram Prakash reported in, 2011 4 SCC 180; R.M. Mehrotra Vs. Enforcement Directorate reported in, 2009 246 ELT 141(Del.); and Mohan Alwani Vs. Director, Enforcement Directorate & Anr. reported in, 2015 150 DRJ 243.;