Decided on November 26,2007



- (1.) CM No. 16054/2007 (exemption)Allowed, subject to just exceptions. LPA No. 1337/2007 and CM No. 16053/07 and 16055/07 (stay) (delay)1. This appeal is directed against the order dated 28th September, 2007 whereby the learned Single Judge has partly allowed the writ petition filed by the appellant to the extent of modifying the order passed by the Appellate tribunal with a direction that instead of depositing 25% of the penalty amount in terms of the order of the Tribunal, the appellant shall make a pre-deposit of an amount of Rs. 50 lacs within two months from that date. Subject to the aforesaid condition, it was directed that the appeal filed by the appellant shall be heard by the Tribunal.
(2.) THE appellant had filed the aforesaid writ petition before this Court being aggrieved by the order passed by the Appellate Tribunal under the provisions of Section 52 of the Foreign Exchange Regulation Act, 1973 (in short "fera" ). The said order of the Tribunal, which was under challenge, was passed in the appeal filed by the appellant as against the order dated 4th October, 2000 passed by the Special Director under the provisions of fera imposing penalty of Rs. 3,55,00,000/ -. The said order was passed by the Special Director regarding the conclusion that the appellant had received compensatory payment to the tune of Rs. 1,66,40,180/- from different persons in India on instructions from Mr. Mohammad of Dubai and made compensatory payment totalling Rs. 5,02,54,335/- to different persons in India on instructions from Mr. Mohammad of Dubai. It was held by him that the charges in the notice issued against him stand proved and after recording the findings a direction was issued that the seized Indian currency of Rs. 5,75,000/- and 21 gold bars often tolas each being amount / property involved in the aforesaid contraventions, be confiscated and the proceeds thereof be credited to the Central Government account.
(3.) THE aforesaid findings, according to the appellant, are unjustified and illegal and consequently a statutory appeal has been filed by the appellant before the Appellate Authority, namely, the Tribunal in terms of the provisions of Section 52. Section 52 (2) of the said Act requires pre-deposit of the penalty amount as a condition precedent for deciding the appeal. However, the second proviso empowers the Appellate Authority to pass an order to dispense with such deposit either unconditionally or subject to such conditions as it may deem fit. An application was filed by the appellant along with the aforesaid appeal under Section 52 (2) read with second proviso seeking for dispensation of the requirement to pre-deposit unconditionally. The Appellate Tribunal on consideration of the records passed an order on 23rd February, 2006 directing that the appellant should deposit 25% of the penalty amount within 45 days from that day failing which the appeal would be dismissed on the ground of non-deposit of the pre-deposit amount of 25% of the penalty amount. The said order passed by the Appellate Tribunal for foreign Exchange was challenged by the appellant by filing a writ petition, which was disposed of under the impugned order. Consequently, this appeal is filed on which we have heard learned counsel for the parties.;

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