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2019 (8) TMI 72 - AT - Money LaunderingAllotment of Mining Lease - criminal conspiracy - scheduled offences - cheating and criminal misconduct by abusing official position of Late Dr. Y.S. Rajsekhara Reddy, the then Chief Minister of Andhra Pradesh, punishable under Section 120-B read with Section 420 of the Indian Penal Code, 1860 and Sections 9, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - main allegations in the charge-sheet as well as the provisional attachment orders are for allotment of mining lease granted to M/s. Bharathi Cement Corporation Pvt. Ltd. (BCCL) are that Y. S. Jagan Mohan Reddy, in a criminal conspiracy with certain public officials and Mr. Jella Jagan Mohan Reddy, got a mining lease wrongfully awarded in favour of M/s Bharathi Cement Corporation Pvt. Ltd. (“BCCL” then M/s. Raghuram Cements Pvt. Ltd.) in violation of the statutory provisions - proceeds of crime. HELD THAT:- It is an admitted position by the Respondent that the Appellant has paid royalty and cess on the limestone extracted. It is submitted that the OC and the PAO itself detail out the royalties and cess paid by the Appellant for the limestone extracted by it from commencement of operations in 2009-2010 and till 2015-16, which totals to INR 122,77,05. The said royalty is paid as per fixed per tonne rates prescribed by the Government by notifications issued on a year on year basis, and is not variable from person to person. Therefore, irrespective of whether the Appellant was granted the mining lease or any other entity was granted the same, the rate at which the royalty would be paid would be the same without any adverse impact to the exchequer. It is the admitted fact that the investment made by the various entities/ companies was a bona fide investment in the Appellant Company. Upon transfer of the shares of the various companies/ entities to PARFICIM, France, they made a substantial gain on investment by way of a bona fide, unchallenged and arm’s length sale of shares to a third party, viz., PARFICIM, France, against which no allegations of any nature have been made. There was a substantial profit to each of the investors, which profit was based on a third party purchase, which transaction has clearly passed the scrutiny of the Respondent itself and the Reserve Bank of India without any shadow of doubt - There are no findings against the majority shareholder of the Appellant concerning any apprehended involvement in any of the alleged illegal activities either in the present proceedings or in the proceedings of the CBI. It is also a matter of fact that despite of change of various Governments in the State by rival political parties, the lease has not been cancelled, rather licensing fee has been accepted without any protest. There are also no allegations that some advantage is taken by BCCL by which the State Government has lost revenue. In the impugned order, replies filed by all the appellants have not been discussed and dealt with. The Adjudicating Authority is duty bound to deal with each and every plea raised by the aggrieved party legally. The same cannot be ignored, otherwise, the order is not sustainable and liable to be set-aside. In view of allegations in the charge-sheet filed by CBI and observation made in preceding paras, this Tribunal is of the view that it is appropriate to strike the balance at present, in order to secure the said amount by way of furnishing the Bank Guarantee instead of appropriating FDs - the huge amount cannot be stalled in the facts and circumstances of the present case, hence, the impugned order is modified about the attachment of ₹ 192 crores, instead of releasing the said amount to the appellants. Appeal allowed in part.
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