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2023 (1) TMI 1195 - HC - CustomsLiability of nominee directors for offence / non compliance committed prior to their appointment - EPCG Scheme - non-fulfilment of export obligation - nominee director and their contiguous liabilities - Section 140 of the Customs Act, 1962 - HELD THAT:- In the present case all directors have been appointed as nominees from among the consortium of banks to oversee the adherence of the company to its financial obligations. Their role and responsibility is thus specific and this is the context against which the liability cast in terms of Section 140 of the Companies Act, has to be tested - While there may be some justification in implicating a nominee director for statutory violations that are current, the violation in question touches upon alleged non-compliance with the terms EPCG licence issued in 2010, long prior to their appointment. No doubt, the terms of the EPCG licence required the assessee to comply with export obligations for a period of eight years after date of licence. However, at the time when such nominee directors were appointed such obligations would not have been at the forefront and there is no justification in expecting the newly appointed directors to apply their minds to the obligations that had crystallized long prior to their appointment and previously in time. It would be improper, unjustified and unwarranted to expect them to have had any participation or involvement in compliance with the continuing export obligation. Petition allowed.
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