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2016 (3) TMI 339 - BOMBAY HIGH COURT

2016 (3) TMI 339 - BOMBAY HIGH COURT - 2016 (332) E.L.T. 769 (Bom.) - Validity of order - No opportunity of hearing provided at the time of passing order - Held that:- all the adjudication orders are set aside, since the Petitioner prays for a fresh opportunity, we direct that the Petitioners either by themselves or through their authorised representative will appear before the Joint Director of Foreign Trade. - Decided in favour of petitioner - Writ Petition No. 6338 OF 2014 - Dated:- 11-1-2016 .....

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xport 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 discharged the same. They have not diverted any imported goods and duty free in the domestic market. However, proceedings were initiated by the 2 .....

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from producing the relevant and germane material. The subsequent adverse development being a petition for winding up presented against the Petitioner. A Provisional Liquidator was appointed and the company continued under this Provisional Liquidator from 22nd March 2007 until recently an order passed by this Court, a copy of which is set out at Annexure 8, page 45 of the paper-book. 4. Thus, a Petition/Application to recall the order dated 16th July 2009 winding up the Petitioner and that being .....

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d 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 .....

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f both Advocates we have perused the Petition and all annexures thereto. In the impugned orders, it has been specifically held that the adjudicating authority had called upon the Petitioners to furnish a reply to the show cause notice. A personal hearing was scheduled on 10th March 2008, but in reply to the notice in that behalf on 7th March 2008 the Petitioner informed the authority under the FTDR Act that they are declared sick and a reference under the Sick Industrial Companies (Special Provi .....

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he penalty. This is the common theme in all the orders and which are impugned in the Petition. In a prior order 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 no .....

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opinion by the BIFR recommending the winding up of the Petitioner. That opinion was confirmed in Appeal and such an opinion is entertained as a petition for winding up on behalf of all creditors and then this Court proceeds to treat it as a Petition presented by any creditor or the Petitioner itself. On such a Petition, we find an extensive order made on 22nd March 2007 (Annexure E , page 43 of the paper-book). The Official Liquidator was appointed as a Provisional Liquidator and this order cont .....

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