2009 (8) TMI 206 - HC - Customs

Stay of pre-deposit - Tribunal passed an order to make pre-deposit of 30% of the amount of penalty under Foreign Exchange Management Act 1999 Dismissed appeal on non-deposit thereof appellant in application for review or recall of order contending that the appellant company is neither capable nor intends to abide by the aforesaid pre-deposit order. - The petitioner before us contends that the appeal could not have been dismissed. In our opinion this is totally misuse by the petitioner herein of the extra ordinary jurisdiction of this Court. After making a statement before the Tribunal that they will not abide by the order of pre-deposit such a petitioner cannot move this Court and seek its extra ordinary jurisdiction. In the light of the above we dismiss this petition.

Summary

Issues:
1. Appeal against order under FERA and FEMA.
2. Non-compliance with pre-deposit order.
3. Dismissal of appeal for non-compliance.
4. Misuse of extraordinary jurisdiction by petitioner.

Analysis:
1. The judgment pertains to an appeal filed by the petitioner against an order passed under the provisions of the Foreign Exchange Regulation Act (FERA) and the Foreign Exchange Management Act, 1999 (FEMA). The Tribunal had directed the petitioner to make a pre-deposit of 30% of the penalty amount within a specified time frame, failing which the appeal would be dismissed solely on that ground. The petitioner failed to comply with this direction, leading to the dismissal of the appeal by the Tribunal.

2. Subsequently, the petitioner filed a Miscellaneous Application for Review/Modification of the order dated 13th May, 2005, citing reasons for non-compliance. The Tribunal, after hearing both parties, observed that the appeal was required to be dismissed due to the petitioner's failure to adhere to the pre-deposit order. The petitioner contended that the company lacked the financial capacity to deposit the penalty amount as directed.

3. Another appeal, Appeal No. 244/05, was mentioned in the judgment, indicating a difference of opinion between the two Bench constituted. This led to the matter being referred to a third member for resolution, ultimately resulting in the disposal of the appeal. The Tribunal, upon hearing the appeal on behalf of the petitioner, noted the repeated contentions regarding the financial incapacity of the appellant company to comply with the pre-deposit order, leading to the dismissal of the appeal for non-compliance.

4. The High Court, in its judgment, addressed the petitioner's argument that the appeal should not have been dismissed. However, the Court found the petitioner's actions to be a misuse of the extraordinary jurisdiction of the Court. The Court emphasized that after stating before the Tribunal that they would not abide by the pre-deposit order, the petitioner could not then seek the Court's extraordinary jurisdiction. Consequently, the Court dismissed the petition, highlighting the misuse of judicial processes by the petitioner.