2015 (7) TMI 1255

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....a research based global pharmaceutical company focused on development, manufacturing and marketing of Active Pharmaceutical Ingredients (APIs), Intermediate Chemicals & Finished Dosages. The applicant is a leading international supplier with a rich portfolio of over 350 products spanning a wide range of therapeutic categories both in active pharmaceutical ingredients and Finished dosages. The applicant's turnover for the Financial year 2011-2012 was more than Rs. 3,300 crores and it paid Rs. 123 crores in taxes to the Government in the Financial year 2011-2012. 3. He submitted that the Andhra Pradesh Industrial and Infrastructure Corporation Ltd. (hereinafter "APIIC"), a Government of Andhra Pradesh undertaking, had acquired a total extent of 955 acres of land for development of an industrial centre at Jadcherla, Mahaboobnagar District in the State of Andhra Pradesh. Out of the aforesaid 955 acres, 250 acres of land was earmarked for development of Special Economic Zone (hereinafter "SEZ") for Pharmaceutical Formulations. Pertinently, as per the extant policy only the non-SEZ land could be sold on outright purchase basis and land within the SEZ area could not be sold but on....

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....whereby 65 acres of land were allotted to the applicant and 9 acres to its associate company, Hetero Labs Ltd. Lease agreement dated 19-6-2008 was executed by and between APIIC and the applicant herein, as a co-developer of the SEZ, for lease of 66 acres of the land forming part of the SEZ at Jadcherla for a period of 33 years with an option for further 33 years lease period for "development of complete Pharmaceutical Formulations infrastructure." 6. He submitted that another Lease agreement dated 31-10-2008 was executed by and between APIIC and the Hetero Labs Ltd., an Associate Company of the appellant herein, for lease of 9 acres of the land forming part of the SEZ at Jadcherla for a period of 33 years with an option for further 33 years lease period for "development of Specific Sector Pharmaceutical Formulations". 7. The counsel submitted that the applicant has already established a Formulations Unit at the land allotted and has so far invested Rs. 320 crores. The commercial production has commenced in April, 2011 and more than 1700 people have been employed so far in its manufacturing plant at the SEZ at Jadcherla. 8. He submitted that in 2011, Division....

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....ero Drugs Ltd. Rs. 517.97 lakhs 2. 1 acre land vide sale deed number 1132/2007, dated 19-2-2007, Dy. No. 72/1A, at Lankelapalem with Unit VI, Nakapalli, District Vishakhapatnam M/s. Hetero Drugs Ltd. Rs. 19.71 lakhs 3. 65 cents land vide sale deed number 3111/2008, dated 23-9-2008, Sy. No. 71/4, ACO. 65 cent at Lankelapalem with Unit VI, Nakapalli, District Vishakhapatnam M/s. Hetero Drugs Ltd. Rs. 16.43 lakhs 4. Fixed Deposit No. 723199, dated 14-8-2012 vide account No. 62241727019 valid up to 14-8-2015 in the name of M/s. Hetero Drugs Ltd. at State Bank of Hyderabad, Sanathnagar Branch M/s. Hetero Drugs Ltd. Rs. 3 crores 5. 82 cents land vide sale deed number 3087/2006, dated 5-6-2006 Survey No. 71/3 at Lankelapalem with Unit VI, Nakapalli, district Vishakhapatnam M/s. Hetero Drugs Ltd. Rs. 7.55 lakhs (Attachment Limited to Rs. 5.89 lakhs only) 10. He submitted that the respondent No. 1 filed Complaint No. 166 of 2012, dated 31-10-2012 before the Adjudicating Authority who issued a wholly premature Notice to Show Cause dated 2nd November 2012 to the applicant which was contrary to the mandate of Section 8(1) of the P....

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.... the subject matter of attachment. Therefore, from a plain reading of the Provisional Attachment Order, as well as the Complaint, it is evident that the respondent No. 1 is merely attempting to secure the value of the proceeds of crime i.e., alleged 'Undue Benefit' received by the appellant. 13. The counsel submitted that in this background, vide letter dated 20-5-2013 addressed to the respondent No. 1, the appellant offered to furnish a Fixed Deposit Receipt for a total sum of Rs. 5.60 crores for the purposes of provisional attachment under PMLA in lieu of release of the Immovable Properties from provisional attachment. The appellant made such proposal without prejudice to its rights and contentions in the present appeal as well as all other legal proceedings that may emanate from the Provisional Attachment Order No. 01 of 2012 dated 4th October, 2012. He further submitted that as no response was received from the respondent No. 1 to the aforesaid proposal and the applicant/appellant, vide letter dated 25-1-2014, reiterated the same proposal to the respondent No. 1 while putting it to notice that the applicant/appellant would be constrained to approach this Hon'ble Tribuna....

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....it the respondent No. 1 inasmuch as it will not have to incur any cost towards maintenance of the immovable property in the event that it takes over possession of the said property. 18. The counsel in the light of the submissions made hereinabove prayed that this Tribunal to direct the respondent No. 1 to accept the Fixed Deposit Receipt for a total sum of Rs. 5.60 crores to be furnished by the applicant/appellant and in lieu thereof release the immovable properties listed at Serial Nos. 1, 2, 3 and 5 above from provisional attachment under PMLA. On instructions, the counsel submitted that applicant will also provide fixed deposit to respondent No. 1 equivalent to the amount of interest on Rs. 5.60 crores from the date of provisional attachment order. 19. The application is contested by the respondent. Reply dated 21 May, 2014 and additional affidavit dated 9-6-2014 have been filed. Ld. Counsel for non-applicant/respondent submitted that the application is filed u/s 35 of PMLA which deals with procedure and powers of the Tribunal and does not provide for any scope to file application for interim directions to deposit the FDRs in place of the lands attached as it wou....

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..... The counsel submitted that no response was given to either of the two letters/representations of the applicant/appellant as the matter was sub judice before this Tribunal. Further, the PML Act and Rules also did not allow any such substitution of FDRs in lieu of the land attached. 25. He submitted that the respondent has attached the properties as per the provisions of PMLA and after confirmation, a notice dated 25-11-2013 was issued to the applicant for taking possession under Section 8(4) of PMLA and possession was taken by the respondent on 3-12-2013. 26. The counsel submitted that there is no provision under the PML Act as well as Rules framed thereunder to release the attached immovable properties of the appellant in lieu of fixed deposits. He submitted that as such the application is misconceived, untenable and not maintainable and thus liable to be dismissed being devoid of merit. 27. We have heard the arguments of both the parties. The plea of the applicant is that the four immovable properties valued at Rs. 5.6 crores and one fixed deposit of Rs. 3 crores which have been attached are not proceed of crime but they have been attached for the va....