TMI Blog2016 (3) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ent : Mr. Pradeep S. Jetly a/w Mr. M. S. Bhardwaj ORDER PC:- 1. The Petitioners have challenged the orders dated 17th June 2008 and 31st July 2008. 2. It is the case of the Petitioners that when all these orders were passed, no opportunity of hearing was given to them. 3. The Petitioners have pointed out that they are merchant exporters, engaged in the import and export of diverse goods including textiles. They were recognised as an export house by the Licensing Authorities while it is true that they have been importing raw materials without payment of custom duty against advance licence issued under the Duty Exemption Entitlement Certificate Scheme obliging them to discharge an export obligation, they have duly disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish and prove that against the subject advance licence, there were no imports made and consequently no exports. Alternatively and without prejudice even if the obligation was not discharged a penalty cannot be imposed and that too by the authority under the FTDR Act. 6. Mr. Jetly, appearing on behalf of the Respondents on the other hand would submit that the Petition deserves to be dismissed. He submits that the impugned orders are of July 2008. The Petition is presented in June 2014. In law, merely because a Petition for winding up is entertained, admitted and a Provisional Liquidator is appointed does not mean that the management cannot come forward to this Court/Company Court and request that the matter before the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of 17th August 2008, it is observed that the show cause notice dated 21st April 2008 was served. A personal hearing was scheduled on 7th May 2008. The notice was issued but none appeared. It is in these circumstances that each order recites that an ex parte adjudication had to be made. 8. While it is true that the grievance now made of want of reasonable opportunity ordinarily would not have been taken cognizance but in the facts peculiar to this case, we can take note of it. It is not as if a winding up order has presented any handicap. This was not a winding up order in the ordinary and normal mode. It was because the Petitioner company ran into financial difficulties. For some time its networth had eroded. That compelled it to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assert and prove the factual submission that the advance licences were not utilised and therefore there is no obligation to export any goods out of India. Alternatively and without prejudice, the penalty cannot be imposed in law. Both these submissions shall be considered by the Adjudicating Authority afresh and without being influenced by its earlier orders. The Adjudicating Authority shall make a fresh order after complying with the principles of natural justice by 29th February 2016. If the Petitioners fail to appear as directed or at any future dates, their right to then appear before the Adjudicating Authority would stand forfeited. 10. We clarify that we have not expressed any opinion on the contentions raised by Mr. Shah. The Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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