- (1.) This Appeal arises from an order of the Appellate Tribunal for Foreign Exchange on an application for waiver of pre deposit made to the Tribunal under the provisions of Section 19(1) of the Foreign Exchange Management Act 1999. The Appeal before this Court arises under Section 35 on a question of law. Though several questions have been framed in the Memo of Appeal, counsel appearing on behalf of the Appellant states that question (e) as raised would be comprehensive enough to govern the submissions which are urged in the Appeal. That question reads as follows : "Whether in the facts and circumstances of the case, the Tribunal is right in dismissing the stay Petition for waiver of pre deposit of penalty in FEMA appeal without properly appreciating the strong prima facie case, violation of principle of natural justice and undue hardship despite bringing out the same on the basis of documents filed along with stay petition in Appeal."
(2.) The Appeal is admitted on the aforesaid question and with the consent of learned counsel appearing on behalf of the Appellant and the Respondent is taken up for hearing and final disposal.
(3.) The Appellant was proceeded against for a violation of the provisions of Section 3(c) of the FEMA. The allegation in the notice to show was that the Appellant together with another person, Sunil Rai, unauthorizedly received payments amounting to Rs.5 Crores on the instructions of persons resident outside India. The residential premises of the Appellant and the co noticee were searched on 19 and 20 February 2003 on information received to the effect that they were involved in illegal betting on cricket matches during the ICC World Cup Tournament of 2003. The search of the business premises resulted in the seizure of documents, audio cassettes, telephones, recording equipment and a computer hard disk amongst other incriminating material. Eight statements of the Appellant were recorded between 19 February 2003 and 8 April 2003. The Special Director in the Enforcement Directorate passed a final order of adjudication on 29 February 2008 holding the Appellant and his co noticee guilty of the charge of having breached the provisions of Section 3(c). A penalty of Rs.2 Crores was imposed on the Appellant and of Rs.1 Crore on the co noticee. The Appellant has filed an appeal before the Appellate Tribunal. On an application for the waiver of the requirement of pre deposit under Section 19, the Tribunal has directed the Appellant to deposit the entire amount of the penalty of Rs.2 Crores. The Appellant had initially filed a petition under Article 226 of the Constitution before the Delhi High Court to challenge the order of the Appellate Tribunal. The Delhi High Court dismissed the petition on 24 September 2008. The order of the Delhi High Court was carried in appeal in the Supreme Court. The Supreme Court dismissed the appeal on 12 April 2010 holding that ordinarily a writ petition would not be maintainable to challenge an order of the Tribunal. The Appellant was, however, granted liberty to file an appeal before the appropriate High Court under Section 35. The Supreme Court also directed that if such an appeal was to be filed within 35 days, the Appellate forum would consider the question of limitation sympathetically having regard to the provisions of Section 14 of the Limitation Act 1963 and having regard to the fact that the Appellant was bonafide pursuing his case under Article 226 of the Constitution before the Delhi High Court. Following the decision of the Supreme Court a civil application was filed before this Court which was allowed by a Division Bench of this Court by a judgment dated 6 July 2011. This Court was of the view that the Appellant would be entitled to the benefit of the provisions of Section 14 of the Limitation Act 1963 and since he was bonafide pursuing his case under Article 226 first before the Delhi High Court and thereupon in appeal before the Supreme Court, that period would have to be excluded. Excluding that period, the Court held that there were sufficient grounds for condoning the delay which was within the statutory period, to the extent of which delay can be condoned under the proviso to Section 35. The Appeal has now been listed and the issue before the Court is whether, within the parameters that are set out in Section 35 of the FEMA, a case has been made out by the Appellant.;