TaxTMI 
TaxTMI 
2012 (11) TMI 879
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.....2,81,82,310/- in contravention of Section 9(3) of FERA. The appellant by receiving payment of Rs.42 lakhs and also making payments totalling Rs.41,58,000/- is said to have contravened Sections 9(1)(b) and 9(1)(d) of FERA. Show cause notice was served to the appellant on 1.3.1999 in the last known address. The appellant has sent reply dated 3.5.1999 through their Advocate K.A.Jabbar. In reply to their show cause notice, the appellant has denied the allegations and requested to drop for dropping the proceedings. The appellant requested for cross examination of the other accused and have given their statements implicating them in the case. The case has been posted for personal hearing on 18.12.2003 and the same was communicated to the appellant and Kamal Basha at their last known address and the same was returned undelivered with the endorsement no such name and left. The adjudicating authority had taken up the case for adjudication and based on the available materials and reply to the show cause notice concluded the adjudication proceedings holding that the appellant and Kamal Basha has contravened the provisions of Section 9(1)(b) and 9(1)(d) of FERA 1973 and 9(3) of FERA. The adju....
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....oard to dispense with such deposit in case if it is of opinion that such deposit will cause undue hardship to the appellant. Section 52(2) reads as under:- 52. Appeal to Appellate Board. - (1) .... (2) Any person aggrieved by such order may, on payment of such fee as may be prescribed and after depositing the sum imposed by way of penalty under section 50 and within forty-five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. 7. Section 54 makes provision for appeal to the High Court on questions of law from any decision or order of the Tribunal. Section 54 read....
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....RA would continue to be governed by the provisions of the repealed Act as if the Act had not been repealed. Sub-section (5) of Section 49 of FEMA provides that notwithstanding the repeal, (a) anything done or any action taken including any rule, notification, inspection, order or notice or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed Act which is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act; (b) any appeal made to the Appellate Board under section 52(2) of FERA but not disposed of before the commencement of this Act will be transferred and disposed of by the Appellate Tribunal; (c) any appeal against the decision or order of Appellate Board under section 52(3) or 52(4) of FERA, shall, if not filed before the commencement of this Act, be filed before the High Court within sixty days of commencement of this Act. However the High Court may entertain the appeal after the expiry of the sixty days period if it is satisfied that there was sufficie....
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.... 50. Although the Section does not expressly provide for rejection of appeal for non-deposit of duty or penalty, yet, it makes obligatory on the part of the appellant to deposit the duty or penalty pending the appeal, failing which the Appellate Tribunal is competent to reject the appeal. The proviso however gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. The expressions used are undue hardship ....... and ........ subject to such conditions as it may deem fit. Thus, it is a matter of judicial discretion of the Appellate Tribunal. 16. Considering the scope of Section 19 of FEMA, in MONOTOSH SAHA VS. SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE, (2010 (18) S.T.R. 81 (SC)), the Supreme Court held that two significant expressions used in Section 19 of the Act are undue hardship to such person ..... and ..... safeguard the realisation of penalty. It was further held that while dealing with application, twin requirements of considerations are: consideration of undue hardship aspect and imposition of conditions to safeguard the realisation of penalty. In Paragraph Nos.12 to 15, holding that i....
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.... the Customs authorities. In the said case, pointing out that the custody of the goods/ part of the goods was in the custody of the revenue and that the question has to be considered afresh, the Supreme Court remitted the matter back to the Tribunal for consideration of the matter afresh. The above decision is not applicable to the case on hand. 18. Contending that the direction to pre-deposit 5% of the penalty would cause undue hardship, the learned counsel for appellant placed reliance upon a decision of the Supreme Court in the case of BENARA VALVES LTD. AND ANOTHER VS. COMMISSIONER OF CENTRAL EXCISE AND ANOTHER, ((2006) 13 SCC 347), which arose out of the direction for pre-deposit for hearing the appeal under Section 35-F of the Central Excise Act. Section 35-F provides for appeal and pre-deposit for hearing the appeal. Section 35-F also contains the expressions undue hardship to assessee and safeguard the interests of the Revenue. Proviso to Section 35-F of the Central Excise Act gives a discretion to the Appellate Tribunal to deposit less amount as it may deem fit so as to safeguard the interests of the Revenue. In the said case, the Appellant was directed to deposit....
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....use notice and other materials on record and passed the order imposing penalty. 22. The contention of the appellant is that when the case was posted for personal hearing on 18.12.2003, the appellant was not given any opportunity. Further contention of appellant is that in their reply to the show cause notice, the appellant has sought for cross examination of the other accused and also the third parties, who have given statements implicating the appellant and having regard to the stand taken by the appellant in their reply, the appellant ought to have been given an opportunity to cross examine the witnesses. Further contention of appellant is that even though reply to the show cause notice was sent by the appellant, through his counsel - K.A. Jabbar, no hearing notice was sent to the counsel and that without giving any opportunity either to the party or to the counsel, the Additional Commissioner/ Adjudicating Officer proceeded to pass the order on 22.1.2004. 23. It was mainly contended that while considering the request for dispensation of pre-deposit, the Appellate Tribunal ought to have taken note of the violation of principles of natural justice and that in view of non-....
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....distinguishable on facts and the learned counsel would submit that after the notices sent to the appellant were returned with endorsement no such addressee and left, the Enforcement Directorate had taken all efforts to serve notice by affixture. Whether notice had been served on the appellant or not and whether there was due compliance of Rule 10 of the Adjudication Proceedings and Appeal Rules is a matter to be determined by the Appellate Tribunal. 26. By perusal of the typed set of papers, we find that show cause notice was sent to the appellant to his address in Chennai viz., No.18/2, Jonehan Street, R.A.Puram, Chennai 600 028. Notice was also sent to Kamal Basha to the address viz., No.13, Nethaji 6th Street, Lakshmipuram, Thiruvanmiyur, Chennai. In response to the said notice, the appellant had sent a reply through his counsel. By perusal of the order of the Additional Commissioner/Adjudicating Authority, it is seen that notice was sent to the appellant to his Chennai address - No.18/2, Jonehan Street, R.A.Puram, Chennai 600 028;. But the said notice was returned with endorsement no such name and left. It is seen that the requirement of Rule 10 are prima facie satisfi....
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....erests of the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka (1993) 3 SCC 467 that under Indian conditions expression undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. Th....