2008 (12) TMI 845 - AT - FEMA

Tribunal Rejects Appeals for Non-Compliance with Pre-Deposit Order Under Foreign Exchange Regulation Act.

Mohd. Salim Khan Versus Director, Enforcement Directorate

Mohd. Salim Khan Versus Director, Enforcement Directorate - TMI Issues Involved:1. Contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1973.2. Non-compliance with pre-deposit order dated 5-8-2005.3. Dismissal of appeals for non-compliance.Detailed Analysis:Issue 1: Contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1973The appeals were filed against various adjudication orders for contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1973. The appellant was penalized for unauthorizedly acquiring and transferring foreign currency, which was used for the purchase and payment of second-hand cars imported from Dubai. The penalties imposed ranged from Rs. 3,000 to Rs. 65,000, as detailed in the appeals listed from Appeal No. 40/1997 to Appeal No. 210/1997.Issue 2: Non-compliance with Pre-deposit Order Dated 5-8-2005Despite multiple notices, the appellant failed to appear or be represented in the proceedings. The Tribunal had previously allowed the appellant to make a pre-deposit of 10% of the penalty while dispensing with 90% of the penalty. However, the appellant did not comply with this order. The Tribunal noted that the appellant has 'miserably failed to comply with this Tribunal's order dated 5-8-2005,' making the appeals non-maintainable under Section 52(2) of the Foreign Exchange Regulation Act, 1973.Issue 3: Dismissal of Appeals for Non-complianceThe Tribunal highlighted the legal provisions under Section 52(2) of the Foreign Exchange Regulation Act, 1973, which mandate the deposit of the penalty amount as a prerequisite for filing an appeal. The Tribunal emphasized that the language of the Second Proviso to Section 52(2) is 'plain and unambiguous,' and does not allow for reinterpretation due to harsh consequences. The Tribunal referred to the Apex Court judgment in Nasiruddin v. Sita Ram Agarwal [2003] 2 SCC 577 to support this interpretation.The Tribunal concluded that the appellant failed to make the required pre-deposit of even 10% of the penalty within the allowed period, showing a lack of bona fides. Consequently, the appeals were dismissed for non-compliance with the pre-deposit order dated 5-8-2005. The Tribunal directed the appellant to deposit the penalty amount within a week from the date of receipt of the order, failing which the Enforcement Directorate may recover the same in accordance with the law.ConclusionThe appeals were dismissed due to the appellant's failure to comply with the pre-deposit order, and the appellant was directed to deposit the penalty amount within a specified timeframe. The Tribunal's decision was based on the clear statutory requirements under Section 52(2) of the Foreign Exchange Regulation Act, 1973, and reinforced by relevant judicial precedents.