9911796707
TMI Blog2003 (5) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... of issuance of notice had moved an application before Board of Industrial and Financial Reconstruction. The company pleaded that for the above reason adjudication proceeding was barred. 4. The second substantial plea was that the company had obtained ECGC cover for an amount of Rs. 5 crores and all the bills were covered by ECGC cover. Hence proceeding was not maintainable as payment by insurance would mean realisation of foreign exchange. 5. The company had also taken steps to file recovery suit in a competent court of law in the USA (o.o. Civ. No. 3586) in District Court against three foreign buyers. The appellants according to their case had filed an application for write off which was still under consideration when proceeding was start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds I also find that non-payment by Mannix USA and M/s. Boncom Togo is because of complications created by the noticees and the said buyers. The payments due to noticee company are withheld because of certain commercial reasons linked to other commercial matters and the failure to realise these payments is on the part of the noticees. The noticee Directors in their written submissions have submitted that they had no concern with the day to day activities of the noticee company which is absolutely incorrect and not in consonence with the statement given before the Investigating Officer on 12-11-97. 8. The Adjudicating Officer imposed a penalty of Rs. 50,00,000 on the company and penalty of Rs. 20,00,000 on each of the Directors. 9. Shri Aror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reason of the Appellant alleged not obtaining the permission of the RBI for extension of time. The appellant submits that the terms permission in section 18(2) of the FERA, 1973 cannot be read as prior permission and thus they are entitled to take the permission of the RBI even at this point of time. In LIC of India v. Escorts Ltd. [1986] 59 Comp. Cas. 548 (SC), it was held that the term permission could not be read as previous permission . The impugned order proceeds on an incorrect appreciation of the law and is therefore liable to be set aside on this ground also. 20. The respondent failed to appreciate that the non-realisation of export proceeds has been due to reasons beyond the control of the Appellant more so particularly in the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to take a view different from that of Bombay High Court. If this was permitted this would lead to uncertainty of law as the Tribunals are under the General Superintendence of the High Courts and must follow their decision..... (p. 424) 12. This Tribunal therefore cannot ignore the decision of the Bombay High Court because appeal is pending before the Hon ble Supreme Court. The appeal filed by the two directors should succeed in view of the decision of the Bombay High Court. 13. So far the company is concerned the relevant facts have been noticed above. Dr. Shamsuddin for respondent has submitted that the learned Adjudicating Officer has held the appellants guilty because the company failed to discharge the burden of proving that reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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