A Division bench comprising justice Suresh Kumar Kait and Neena Bansal Krishna noted that Adani Power’s submissions that the department (revenue) has filed a review in the SC. “Accordingly, till then, direction given in paragraph 52 (directing the CBI to look into over invoicing allegations) shall not be applicable in case of Adani Power,” it said.
A review petition filed by the Revenue department against dismissal of its appeal last year is pending before the apex court. The case relates to the import of equipment/machinery by Adani Power Maharashtra and Adani Power Rajasthan (now both firms merged into Adani Power). The SC had last year upheld the Directorate of Revenue Intelligence’s order dropping investigations against the two companies.
According to the company, so far as the investigation/preliminary enquiries (PR) being initiated against its entities was concerned, the HC had earlier recorded the CBI’s stand that the PE initiated against various companies and unknown officials of some PSU banks was closed in July 2015 on jurisdiction issue and the CBI chose not to challenge the closure. “Therefore, even the PE against the Adani entities/Adani Power stands closed,” the application stated.
The HC order came on an application filed by Adani Power seeking recall of the HC’s December 19 order that directed the CBI and Directorate of Revenue Intelligence to meticulously and expeditiously look into the allegations of over invoicing of coal imports and equipment by various companies including, Adani Group and Essar Group, to unearth actual factual position and take appropriate actions against the erring companies take appropriate actions in accordance with the law.
“The order has violated the principles of natural justice as the court proceeded to hear the matter without impleading it, who is a necessary party to the present proceedings,” senior counsel Rajiv Nayyar, appearing for Adani Power, told the HC, adding that the original petitioners had failed to make Adani Power a party and got orders behind its back.The company further argued that if it was made a party, it could have presented correct facts with documents and sought dismissal of the petitions. “It is a settled position of law that the concepts of necessary and proper parties is an accepted norm of civil law and the principles relating to the same can safely be applied to the proceedings before any tribunal,” Adani said in its recall application.The high court has been hearing PILs – one by the Centre for Public Interest Litigation and Common Cause, and the other by Harsh Mander seeking a probe by Special Investigating Agency into reports of DRI against various private power generating companies for over invoicing carried out by them. Mander had also sought the CBI probe in respect of over invoicing in power projects or to set up a SIT under a retired Supreme Court judge.
DRI had earlier told the HC that show cause notices have been issued in all cases of imports of capital goods/power equipment wherein investigation was carried out and also that some cases are pending adjudication and in some cases appeals have been filed. Letters Rogatory to Overseas Courts in Singapore, Dubai, Hong Kong, Switzerland & Indonesia to gather evidence and documents have been issued, however, since the process is time consuming and multiple countries are involved, all necessary steps have been taken by the DRI for expeditious completion of the same.
However, the petitioners argued that modus operandi adopted by the firms is that though the coal or equipment are shipped directly to India, however, the invoicing had been routed through a different company incorporated abroad, which is directly owned and controlled by the promoters of the project in India.
