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2016 (5) TMI 1383

Head Note:
Contravention of Sections 8(3) and 8(4) of FERA, 1973 - direction of furnishing corporate guarantee - interpretation in the review petitioner that the corporate guarantee is a business consideration - Held that:- The guarantor is bound to indemnify the authority to whom corporate guarantee is furnished. Relationship of business is not a necessary condition. Generally the corporate guarantee is furnished on the basis of overall performance and goodwill of the company for which the guarantee is furnished. This Tribunal earlier used to demand bank guarantee, however, when it was brought to the notice of the Tribunal that banks now a days provide bank guarantee only when the entire deposit is made to it, the Tribunal stopped demanding bank guarantee from the parties at the time of disposal of the applications for stay and waiver from pre-deposit. Demanding a bank guarantee in view of the poor financial conditions of an appellant in my view may tantamount to deprivation of the statutory right to appeal and for all practical purposes it will amount to demanding the deposit of entire amount of penalty imposed through the adjudication order. The case laws relied upon by the ld. counsel for the respondent justifying the order of modification of furnishing of corporate guarantee in place of bank guarantee. It may be pertinent to mention here that the corporate guarantee has been filed in compliance and must have been accepted, therefore, also the application is misconceived.

It may be observed that moving such applications and contending that the Tribunal has deviated from the routine procedure without any ground amounts to scandalizing the Tribunal & attempt to lower its image in the estimation of public and is an aspersion upon the functioning of the Tribunal. The Enforcement Directorate is warned for future to desist from making such bald aspersions against the Tribunal which may have no basis. Safeguarding the interest of revenue does not mean that a party may be deprived of its statutory right to file an appeal. The review petition consequently deserves to be dismissed. Since the petition has been argued and might have been drafted by ld. legal consultant who is fairly new in the legal field, therefore, taking a lenient view, I am not imposing costs against the Enforcement Directorate for wasting the precious time of the Tribunal involved in the litigation and not directing for initiation of any other action. The review petition is dismissed.


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