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2023 Supreme(Del) 6001
IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Centre For Public Interest Litigation & Anr. - Appellants
Versus
Union of India & Ors. - Respondents
W.P.(C) 8136 of 2017 & W.P.(C) 8401 of 2017
Decided On : 19-12-2023
Mr. Prashant Bhushan, Senior Advocate with Ms. Neha Rathi & Ms. Kajal Giri, Advocates, for the Petitioners in W.P.(C) 8136/2017.
Mr. Farman Ali & Ms. Usha Jamnal, Advocates, for Mr. Ravi Prakash, CGSC, for the respondent No.1-UOI in W.P.(C) 8136/2017 & W.P.(C) 8401/2017.
Mr. Aditya Singla, Senior Standing Counsel with Ms. Charu Sharma & Mr. S.A.Rabde, Advocates for respondent No.2-DRI with Assistant Director, DRI, Mumbai in W.P.(C) 8136/2017 & W.P.(C) 8401/2017.
Mr. Nikhil Goel, Special Public Prosecutor with Ms. Siddhi Gupta & Mr. Adithya Koshy Roy, Advocates for respondent No.3-CBI with Mr. M.K. Singh, DSP, CBI in W.P.(C) 8136/2017 & W.P.(C) 8401/2017.
Mr. Sarim Naved, Mr. Saurabh Sagar & Mr. Harsh Kumar, Advocates, for the Petitioner in W.P.(C) 8401/2017.
The court directed investigations into allegations of over-invoicing by power companies, emphasizing the impact on public interest and the need for accountability.
Headnote:(A) Constitution of India - Article 226 - Public Interest Litigation - Investigation into over invoicing by power generating companies - Petitioners seek probe by SIT into allegations of over invoicing leading to siphoning of funds abroad and higher power tariffs - Allegations supported by DRI alerts and investigations into Adani and Essar Groups - Court orders respondents to expedite investigations. (Paras 1-53)
Facts of the case:
The petitions arise from concerns about over invoicing in coal and equipment imports by private companies, allegedly resulting in inflated tariffs and public interest ramifications.
Findings of Court:
The Court directed the respondents to expedite investigations into the allegations of over invoicing and take necessary actions as per law.
Issues: The primary issues involve the credibility of the investigations into over invoicing and its implications on public interest.
Ratio Decidendi: The Court emphasized the need for thorough investigations into the allegations of financial misconduct affecting public interest and regulatory compliance.
Result: Petitions disposed of with directions to expedite investigations.
JUDGMENT
Suresh Kumar Kait, J. - In the above captioned first petition [W.P.(C) 8136/2017], petitioner No.1-Centre for Public Interest Litigation, claims to be a registered Society formed for the purpose of taking up causes of grave public interest and conducting Public Interest Litigation (PIL) and petitioner No.2-Common Cause, also claims to be a registered Society for the purpose of ventilating the common problems of the people and securing their resolutions.
2. The petitioners have preferred W.P.(C) 8136/2017 under Article 226 of the Constitution of India seeking probe by Special Investigating Agency (SIT) into reports of Directorate of Revenue Intelligence (DRI) against various private power generating companies for over invoicing carried out by them.
3. The above caption second petition [W.P.(C) 8401/2017] under Article 226 of the Constitution of India has been preferred by the petitioner-Harsh Mander as a Public Interest Litigation (PIL), seeking a direction to respondent No.3-Central Bureau of Investigation to investigate cases in respect of over invoicing in power projects, as reported by the Directorate of Revenue Intelligence (DRI) OR to set up a Special Investigating Team (SIT) under a retired Judge of the Supreme Court of India to probe into the over invoicing. In addition, a direction is also sought to respondents No.1 & 2 i.e. Department of Revenue and Ministry of Power, to make declaration of international market price a mandatory part of the bill of lading/shipping at the time of presentation of the documents to Customs Authority of India (CAI) and to direct respondent No.5-Reserve Bank of India (RBI) to make it mandatory for Banks to require declaration of international market price while granting credit/discount facilities on any bill of lading/invoice for import in India.
4. As common issues have been raised in these petitions, therefore, with the consent of learned counsel for the parties, these petitions were heard together and are being disposed of by this common judgment.
5. The petitioners in the above captioned first petition claim to be concerned about the increasing trend of over invoicing by the private companies in the private sector with huge public interest ramifications. According to petitioners, the modus operandi adopted is that though the coal or equipments are shipped directly to India, however, the invoicing has been routed through a different company incorporated abroad, which is directly owned and controlled by the promoters of the project in India. The petitioners have classified the over-invoicing of cases as under:
A. Over invoicing of coal imports by several companies
B. Over invoicing of equipment by several companies belonging to Adani Group
C. Over invoicing of equipment by Essar Group
A. OVER INVOICING OF COAL IMPORTS
6. The petitioners have relied upon DRI alert dated 30/31.03.2016 in respect of investigation scrutinizing coal imports and recovered two sets of test reports issued at the load port by two different testing agencies, one, showing lower Gross Calorific Value (GCV) and the other higher GCV. The one with lower GCV were in conformity with the contracts between subsidiary companies/intermediary agents of Indian importers and Indonesian suppliers, reflecting the actual value of the coal. The reports with higher GCV submitted to the Indian Customs at the time of import was in line with the supply of contracts between subsidiary companies/intermediary agents of the Indian importers and the power generation companies, reflecting the inflated value of the coal. The said DRI alert dated 30.03.2016, which names 40 companies is as under:
"Directorate of Revenue Intelligence
7th Floor, D Block, Indraprastha Bhawan, Indraprastha
Estate,
New Delhi-110002
Telefax: 91-11-23378058, 23370437
DRI F. No.DRI/HQ-CI/50D/Misc-33/2016-CI Dated: 30/31.03.16
To,
All the Principal Chief Commissioner of Customs
All the Principal Chief Commissioner of Customs & Central Excise
All the Chief Commissioner of Customs,
Al
