- (1.)This is a petition for issue of a writ of certiorarified mandamus calling for the records in Appeal No. 1163/77, on the file of the 2nd respondent and orders dated 15.3.1980 and 27.5.1980 passed by the 2nd respondent in Appeal No. 163/77 and quash the same and direct the 2nd respondent to hear the Appeal No. 163 of 1977 without insisting for deposit of penalty as a condition for hearing the appeal.
(2.)It is inter alia stated in the affidavit sworn to by the petitioner herein that a show cause notice was issued to the petitioner on 4.10.1966 by the Director of Enforcement, New Delhi charging the petitioner for contravention of Section 12(2) of the Foreign Exchange Regulation Act, 1947. The Petitioner submitted a reply dated 21.10.1966. Subsequently adjudication proceedings were initiated and on order dated 30.8.67 was passed by the Director of Enforcement. The petitioner filed a writ petition in W.P. No. 2982 of 1967 challenging the order of the Director of Enforcement, and the order of the Director was quashed by this Court in that writ petition. The writ petition was allowed on the ground that it was not made out that there was any intention on the part of the petitioner to contravene the provisions of Section 12(2) of the Foreign Exchange Regulation Act,1947.
(3.)Even though no case has been made out that the petitioner had intentionally violated Section 12(2) of the Act, the Ist respondent thought it fit to initiate the proceedings by issuing a fresh show cause notice. Accordingly a fresh show cause notice was issued on 13.9.1967. The petitioner appeared before the Ist respondent and produced two letter from the petitioner's Bankers from which it was clear that steps were being taken to realise the monies from the Foreign buyer and that there was no intention on the part of the petitioner to repatriate the sale proceeds. The Ist respondent ultimately passed an order dated 8.8.1967 imposing a penalty of Rs. 40,000/- on the petitioner. The petitioner preferred on appeal before the Appellate Board, the 2nd respondent herein, in Appeal No. 1163 of 1977. The Appellate Board seems to have passed an order on 25.3.1980 calling upon the petitioner to deposit Rs. 5,000/- out of the penalty of Rs. 40,000/-. By then, the petitioner had already closed his business and he had been out of Madras for some time and the petitioner could not contact his counsel. The petitioner was given two months time from 25.3.1980 to make deposit Since the petitioner came to know about the order very late, i.e., in the middle of May, 1980, he immediately sent a telegram requesting for some more time to make the deposit. But the 2nd respondent seems to have passed on order dated 27.5.1980 dismissing the petitioner's appeal on the ground that the petitioner had not made the necessary deposit as per order dated 25.3.1980. The petitioner preferred an appeal on C.M.A. No. 434 of 1981 before this Court under Section 54 of the Foreign Exchange Regulation Act, 1973. When the C.M.A, came up for admission, this Court was of the view that the vires of the provisions of the Foreign Exchange Regulations Act cannot be questioned in the appeal. Hence the C.M.A. was dismissed at the stage of admission itself.