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2018 (3) TMI 1250 - AT - FEMAMaintainability of Appeal under Section 19 of FEMA Act - Held that:- Provisos to Section 19(1) of the Act, an appeal can be maintained/heard only when the issue of pre-deposit of penalty has been examined/addressed. In the instant case, the conditions for filing Appeal has not been satisfied as no “penalty” has been imposed in the absence of “an order”. As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal filed by the appellant is pre-mature and hence non- maintainable. As stated earlier, the instant appeal has been filed by the appellant against “record of personal hearing” held on 15.11.2017 in the office of the Special Director of Enforcement, Mumbai. As would be observed from the above, appeals have been filed at various stages during the course of Adjudication proceedings praying this Tribunal to pass certain directions to the Adjudicating Authority. Even the instant appeal has not been filed against an “order” of the Adjudicating Authority. The provisions of Section 19 of FEMA entitles the appellant to prefer an appeal only once the “order” is passed and not against hearings conducted by Adjudicating Authority in adjudication proceedings. The contention of the appellant that Section 19(6) empowers the Tribunal to suo moto examine the “legality, propriety or correctness of any order” made by the Adjudicating Authority is not restricted and limited to the final order and that the words “any order” in Section 19(6) and “an order in Section 19(1) has to be given the same meaning is misconceived and misleading. This could not have been the intent of the legislature as every notice issued by Adjudicating Authority or hearing/enquiry conducted by Adjudicating Authority in the process of adjudication so as to enable him to pass an “order” could become a subject matter of appeal. In the instant case, the conditions for filing Appeal has not been satisfied as no “penalty” has been imposed in the absence of “an order”. As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal filed by the appellant is pre-mature and hence non- maintainable. It would not be prudent for this Tribunal to entertain the appeal against the “record of personal hearing” in the office of Adjudicating Authority during the course of Adjudication proceedings. Needles to reiterate, it would also not be prudent for this Tribunal to advice/direct/instruct the Adjudicating Authority to follow a specific or particular course of action in adjudication proceedings as the same would amount to interference in the functioning of the Adjudicating Authority.
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