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2009 (8) TMI 622 - HC - FEMADispensation of pre-deposit-Penalty- the disputes are that the penalty was imposed on the petitioner by Special Director of Enforcement on the allegation that the partner of petitioner Sh. Hardeep Singh @ Babu and another person Sh. Raman B. Gupta, Sh. Sunil Gill and Rajiv Kumar and Sh. Deepak were illegally acquiring and transferring foreign currency out of India to bring into India gold, silver and other dutiable goods. The petitioner seeks setting aside of order dated 31st January, 2008 passed by the Appellate Tribunal for Foreign Exchange directing the appellant to deposit 20% of the penalty amount within 30 days from the date of receipt of the said order. Held that- The petitioner has also produced medical record of his wife to show that he requires considerable amount of money for her treatment. In the circumstances if the petitioner is directed to deposit 25 lakhs of rupees, by any yardstick will cause ‘undue hardship’ to the petitioner. The Tribunal has elaborated what is ‘undue hardship’ but failed to apply the facts of the present case to infer whether ‘undue hardship’ shall be caused to the petitioner or not if the petitioner is directed to deposit the amount, in the present facts and circumstances and considering the prima facie case in favor of petitioner, it still cause irreparable loss to him. Therefore it has to be inferred that the impugned order directing petitioner to deposit rupees 25 lakhs as a condition for hearing his appeal is vitiated and is liable to be set aside. Accordingly, having regard to the facts and circumstances of the case the order dated 31st January, 2008 passed by the Appellate Tribunal for Foreign Exchange in directing the appellant to deposit 20% of the penalty amount within 30 days from the date of receipt of the said order is set aside and the writ petition is allowed.
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