9911796707
TMI Blog2005 (3) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ewith a writ of Certiorari. 2. The petitioner is a public limited company having been incorporated under the provisions of the Companies Act, 1956. Its main activity is manufacturing of cotton yarn and this is 100% export oriented unit. The company started its commercial production on 4-7-2000. On account of its financial constraints the company had to approach the Board for Industrial & Financial Reconstruction (BIFR), New Delhi. Subsequently, it sought permission for clearing the manufactured goods under domestic tariff area. The petitioner was accordingly permitted to clear the goods under DTA sales fixing the limit at Rs. 950 lakhs in the month of June 2003. 3. On gathering intelligence that the petitioner-company was affecting cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices, the impugned order dated 24-12-2004 was passed followed up by, as aforesaid, the detention order dated 7-2-2005. 4. It is the case of the petitioner that the ground mentioned, inter alia, in the impugned order that the copies of the documents required are not relevant and they have been requested at the eleventh hour, without any connection to the issue under examination and only sought for with intent to delay the present proceedings, is not correct and it is a case where the principles of natural justice have been violated. It is the further case of the petitioner that under the impugned order, the authorities should have drawn an adverse inference for non-supply of the documents and, therefore, the order in question is vitiated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate stage. 7. Following facts need to be noticed for brevity and better understanding of the matter. Admittedly, the petitioner-company is 100% export oriented unit and was permitted to manufacture carded cotton yarn and combed cotton yarn by means of a letter dated 30-9-1992 by the Government of India, Department of Industrial Development. The petitioner started production on commercial basis with effect from 4-7-2000. As a result of non-release of working capital and substantial delay in disbursement of loan, the company could not start its production. Obviously, on account of certain financial constraints the petitioner had to approach the BIFR, New Delhi under Section 15(1) of the Sick Industrial Companies (Special Provisions) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el in U.P. State's case (3 supra) and Baburam's case (4 supra) need no reference. 12. Admittedly, the petitioner has been making preparations to prefer the appeal before the first authority. But, it is the case of the petitioner that such an attempt becomes an empty formality inasmuch as the appellate authority has no power to remit the matter to the primary authority for fresh consideration after affording necessary and reasonable opportunities to the petitioner to submit the documents, when supplied. In this connection, it is the contention of the learned senior counsel that the adjudicating authority, which passed the impugned order, ought not to have denied or refused for summoning the documents and supplying copies thereof sought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submissions and the said records are not readily available. In this connection, it is clear that the documents requested by M/s. KCL are neither relied in the show-cause notice nor they have relevance to the issue under examination. In view of the above, I take up the adjudication of the case, without waiting for the furnishing of records, which have been requested at the eleventh hour and that too without any connection to the issue under examination, seemingly with the intent to delay the present proceedings." 15. The correctness or otherwise of the decision is not a matter germane for consideration in the instant writ petition. As a matter of that, we are not sitting in appeal over the impugned order passed by the first authority. Obv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the first appellate authority has no power to remit the matter to the primary authority for fresh consideration. That does not mean that the appellate authority has no power to give an opportunity to the petitioner either by calling for the records which are relevant or giving an opportunity to the petitioner himself to get at those documents and produce the same. The first appellate authority can take up the matter effectively on its own merits by providing post-decisional opportunity to the petitioner. In the process it is also open to the first appellate authority to draw the necessary adverse inference as sought to be canvassed by the learned senior counsel before us. Therefore, we are afraid that the petitioner cannot legitimately ..... X X X X Extracts X X X X X X X X Extracts X X X X
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