9911796707
TMI Blog2013 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (CA No.1297/2008) was filed by the auction purchaser, Mr. Vilas Gupta for permission to further sell the plant and machinery of YMIL purchased by him in the auction sale to enable him to generate capital for his company. 2. The facts leading to the filing of the aforesaid two applications are that by an order dated 12th October, 2004, YMIL was ordered to be wound up by the learned Company Judge after noting that the BIFR in its order dated 30th October, 2000 had held YMIL to be a sick industrial company that was not likely to become viable in future. The Court appointed the Official Liquidator as the Liquidator of YMIL who invited bids for the sale of the assets of YMIL after the Noida Special Economic Zone (NSEZ) had given its no objection to the sale of the assets of the company. The bid of the auction purchaser Mr. Vilas Gupta for an amount of Rs. 1,35,50,000/- was accepted by the Court on 7th December, 2006 after noting that it was the highest bid and was more than the reserve price of Rs. 1,24,27,200/-. The Official Liquidator and the representative of IFCI also represented before the Court that the bid may be accepted. The auction purchaser was accordingly directed to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. In terms of the subsequent order of the Court dated 18th January, 2007, possession of the capital goods and raw material was secured by the Official Liquidator from the Development Commissioner and then handed over by the representative of the Official Liquidator to the auction purchaser who had deposited the full amount on 7.2.2007 and possession memo with regard to the handing over was also obtained, which is on record. 5. Being aggrieved by the auction sale and its confirmation by order dated 7.12.2006 and by the handing over of the goods to the auction purchaser vide possession memo dated 7.2.2007, the Appellant/Customs Department filed an application on 15.7.2008 or thereabout for quashing/setting aside the sale of auctioned capital goods and raw material and for restoration of the goods to the Customs Department. The said application was dismissed by the learned Company Judge vide impugned order dated April 26, 2013, which order has given rise to the present appeal. We have heard the respective contentions of Mr. Satish Aggarwala, the learned senior counsel for the Appellant and the Official Liquidator of YMIL. 6. At the outset, we note that the essential facts are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had written to the Deputy Commissioner of Customs, NSEZ on 2nd September, 2008 for permission to dispose of the plant and machinery, but no response to his said letter was given by the Deputy Commissioner. In paragraph 15 of his reply, the auction purchaser stated that he was ready and willing to return the plant and machinery if he was returned the sum of Rs. 27,64,037.75. He also filed an application, being CA No.1257/2008 on 22nd November, 2005 praying inter alia for confirmation of the sale in his favour. 8. By an order dated 28th July, 2009, the Court required the Customs Department to file an affidavit "setting down all the relevant facts identifying goods and machinery, etc." claimed by it. Pursuant to the said order, the Customs Department sometime in July, 2010 filed an affidavit enclosing an annexure setting out 7 items of 'capital goods and six items of 'raw materials, four of which were described as "glass" and last two as "Mercury" and "Top Ring". Since it could not be discerned from the same whether the capital goods confiscated tallied with the plant and machinery sold to the auction purchaser on "as it is where it is basis", the Court directed the Customs Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the Bills of Exchanges but stating therein that copy of the inventory of goods at the time of confiscation was not available in the relevant file. Paragraph 4 of the said affidavit is significant, which reads as under:- "4. As regards the details of the goods stated to have been handed over by them to the Official Liquidator subsequent to confirmation of auction, it is submitted that no goods were handed over by the department of Customs to the Official Liquidator subsequent to confirmation of auction by this Hon'ble Court." 10. In the aforesaid factual scenario, the learned Company Judge noted that in the absence of the inventory of the goods of YMIL, which was drawn up at the time confiscation of the goods in 1997 and which was critical for considering the plea of the Customs Department for cancellation of the auction sale, there was nothing to verify that the goods which had been sold by auction sale in 2007 were in fact the very goods that were confiscated by the Customs Department in 1997. What had been produced by the Customs Department were Bills of Exchange and Packing List dated 1990 and 1991 recording 'capital goods and 'raw materials. In the absence of any inv ..... 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