2013 (10) TMI 1584

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....No.T-4/8-D/94 & for waiver of pre-deposit of penalty amount i.e Rs.65,00,000/- (Rupees Sixty five lakhs), Rs 10,00,000/- (Rupees Ten lakhs) & Rs.10,00,000/- (Rupees Ten lakhs) vide Appeal Nos.143,144,145 of 2010 respectively, imposed by Special Director, Directorate of Enforcement, New Delhi for the contravention of the provisions of Sections 2(h), 8(1), 9(1)(a), 6(4), 6(5), 49, 64(2), 68, 73(3) of FERA, 1973 & paras 29-A-3, 29-B-5, 29-B-8(a), 29-B-9(c) & 29-B-4 of Chapter 29 of ECM, 1987. The applicant/appellant in Appeal No.143/2010 is a foreign bank, earlier it was named as ANZ Grindlays & now, it has been merged with Standard Chartered Bank, who is carrying on its banking activities in accordance with law, whereas the applicants/appella....

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....ellant Bank has already got the entire money repatriate back to the country at a higher rate of Foreign Exchange, out of its own profits and therefore, any condition of pre-deposit would cause a great hardship on the Appellant. It is also emphasized that no prejudice would be caused to the respondent in the event of dispensing with the pre deposit of the penalty amount. It is also stated that there is a good prima facie case and in case, stay/waiver is not granted, the applicants/appellants would face undue hardship or otherwise. In support of his contention, Ld. Counsel for the Applicants/Appellants placed reliance on a catena of Authorities/judgment titled as Benara Valves Ltd. v. CCE [2007] 6 STT 13 (SC), Bank of Baroda v. ATFE [WP(C) N....

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....he Impugned Order No. SDE/BK/111/03/2010 dated 14-5-2010, passed by Sh. Balesh Kumar, Special Director, Directorate of Enforcement, New Delhi, we are of the view that legal position of law is discussed in the Authorities/judgment titled (supra). However, legal position of law is very much clear as it has been held by the Hon'ble Supreme Court in Benara Valves Ltd. (supra) wherein the Hon'ble Supreme Court observed as under (Relevant para 12 - 14) :-- 'Para 12…. "There are two important expressions in Section 35F of Central Excise Act, 1944. One is undue hardship. This is a matter within special knowledge of the applicant for the waiver and has to be established by him. A mere assertion about undue hardship would no....

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....ements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the realization of penalty have to be kept in view. 12. As noted above there are two important expressions in Section 19(1). 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 (supra) 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 ....