mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1053 OF 1993 M/s.Jayant Building & Architectural Products Private Ltd. ..Petitioners Vs. The Union of India & Ors. ..Respondents Mr. Manoj Sanklecha with Mr. Sandeep Mandrekar i/b. Wadia Ghandy & Co., for the Petitioners Mr.R.V.Desai, Senior Counsel with Mr. A.S.Rao, for the respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 26TH AUGUST 2009 P.C. The petitioner has approached this Court against the order dated 26th March, 1993 whereby a penalty was imposed on the petitioners in the sum of Rs.11.00 lacs. The notices were issued both to the company and to the erstwhile Directors. The present petition has been filed at the instance of the company. 2. From the facts on record it is clear that two advance licenses were issued to the petitioners on 30th December, 1975 and 13th December, 1977. It appears that the said company was wound up by the Company Court on 5th September, 1979 in Company Petition No.134 of 1979. On 2nd July, 1980 under Scheme of Compromise and Arrangement the Official Liquidator was directed to hand over possession of the management of the petitioner to the present management of one J.K. Gupta. 3. On 6th December, 1989 it is the case of the petitioners that they received a show cause notice as to why penalty should not be imposed under Section 4-I(1) (a) of the Import Export Control Act, 1947 for failure to fulfill the export obligations under the two advance licenses. The petitioner by various replies informed the respondent No.2 that they were under a new management and not aware of the activities prior to 1981. The matter was old and records were also not available. From time to time request was made for the records. According to the petitioner the records were not made available and finally the impugned order came to be passed on 26th Marc, 1993. 4. At the time of hearing of this petition on behalf of the petitioner the learned Counsel contends as under:- It is firstly submitted that the matter is an old matter. The records were not available and in these circumstances issuance of show cause notice after nearly 10-12 years of the issuance of the advance licenses they would not be in a position to show cause. In these circumstances on account of latches the order is liable to be quashed and set aside. Secondly, it is submitted that at the relevant time records were to be kept only for eight years. This would also be the impediment on the part of the petitioners in showing cause. The petitioner had in fact requested for these records, but the same were not made available. That will also amount to breach of the principles of natural justice and fair play. 5. On behalf of the respondents learned Counsel submits that the petitioners were in default and in these circumstances the order impugned cannot be faulted. 6. In the instant case we are concerned with the company which was wound up and the present management took over the management under the scheme of Compromise Arrangement. This by itself would not result in holding that no penalty could have been imposed on the petitioners. But this would be a relevant factor in so far as penalty is concerned. The other aspect of the matter is that the grievance of the petitioner was that there were no record available. Though they sought records from the respondents, they were not made available to the petitioners. If these aspects are taken into consideration, in our opinion, the matter would have to be remanded back for reconsideration. After hearing the Counsel, in our opinion, instead of resorting to that course and considering the peculiar facts of this case we do not propose to interfere with the ultimate conclusion arrived at by the respondent No. 2, but we reduce the penalty imposed from Rs.11.00 lacs to Rs.2.50 lacs. On behalf of the petitioners learned Counsel states that the penalty will be paid within a period of eight week from today. Statement accepted. Rule made partly absolute accordingly. No order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)