TaxTMI 
TaxTMI 
2005 (2) TMI 918
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....nt within 30 days, as a pre condition for hearing of the appeal in terms of Proviso to Section 19 of the Foreign Exchange Management Act, 1999 (in short 'FEMA'). 2. The present writ petition raises an interesting question, regarding interpretation to be given to the expression ''Undue hardship'', as it appears in proviso to Section 19 of the FEMA. The said Section is reproduced for facility of reference:- ''19. Appeal to Appellate Tribunal-(1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of Section 17, or the Special Director (Appeals), may prefer an appeal to the A....
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....what is meant by the expression ''undue hardship''. In Oxford English Dictionary, the meaning of ''undue'' is given as unwarranted or inappropriate because excessive or disproportionate. Strouds Judicial Dictionary gives the following meaning to ''undue hardship'' as per judicial decisions cited therein:- ''For a hardship to be undue it must be shown in my opinion that the particular burden to the applicant to have to observe or perform the requirement is out of proportion to the nature of requirement itself and the benefit which the applicant would derive from compliance with it. (1944) VLR 147 Again in Liberian Shipping Corporation Pegorus v. Kingsons (1967) 2 KB 86 it is....
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....y in nature and failure to deposit the amount in question renders the appeal incompetent. The factors to be kept in view while considering an application of waiver of deposit are well established. These are a prima facie case n favor of the applicant, the balance of convenience qua deposit or otherwise, irreparable loss, if any, to be caused in case waiver is not granted and safeguarding of public interest.'' (iii) Reference may lastly be made to a recent decision of the Supreme Court in Mehsana Dist. Co-Op Milk P.U. Ltd. v. Union of India (Civil Appeal No. 2668/2003 decided on 31st March, 2003). The Court while dealing with waiver of pre-deposit under proviso of Section 35 of the Central Excise Act, 1944 noted as under:- ....
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....n exercise of discretion is determining the quantum of waiver to be granted. In determination of the quantum of waiver, factors, such as, balance of convenience,financial hardship of the parties, its capacity to pay or secure the amount and irreparable loss are to be considered. The said discretion is to be exercised in accordance with well settled principles for exercise of judicial discretion. 8. Coming to the facts of the present case, the Adjudicating Officer had, vide its order of 15th May, 2002, imposed a penalty on Sh. Gurucharan Singh Sethi and Smit Surinder Kaur, who had acquired foreign exchange to the extent US $ 2,22,895 and pound sterling 3,49,920 equivalent to Indian Rs. 3 crores. The said Sh. Gurucharan Singh Sethi and Smi....
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....ere in force as per para 13B.22(c) of Exchange Control Manual, 1993. I find that the authorized dealers-Bank of Baroda and Punjab National Bank-failed to show diligence in his aspect while carrying out the transactions of accepting and crediting hard foreign currency from the notices, namely Shri Gurucharan Singh Sethi and Smt. Surinder Kaur. It is felt that while holding on to the legal frame work, the authorized dealers a e expected to discharge caution and diligence in such transactions also. In the instant case, had the notice banks exercised due caution, the repeated and frequent deposits of foreign currency involving amounts in such manner that the same did not exceed US $ 10,000 or its equivalent could have been detected and the tran....
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....t there was lack of diligence and failure to take due and reasonable care. It would have been apparent even on a cursory look at the transactions to ask for the passport details to ascertain the non-resident status and thereby resultantly detect the violation of Foreign Exchange Regulation Act. 11. Having noted the legal position, as it emerges and the judicial principles to be applied for waiver of pre deposit, as discussed in paras 5, 6 and 7, I find that there is considerable merit in the submission of Mr. Pramod B. Agarwala. Petitioner Bank and its officials can reasonably urge that as long as they are conforming and not violating the overall limit of accepting deposits, which can be made, without any declaration, they could not be h....