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TMI Blog2009 (5) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Directorate were that the appellant was guilty of contravention of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'FERA'), particularly section 8(1). Apparently her father, Late Satnam Shah opened accounts in Swiss Banks as also in the Midland Bank, (later 'HSBC'), in the U.K. According to the Enforcement Department, the appellant was the joint holder of one account and also was under a duty upon the death of her father in terms of section 8(1) of FERA to repatriate the funds in the account to India through banking channels. The adjudicating authority had imposed a penalty of Rs. 2.75 crores stating that the appellant had not complied with the duty cast on her to follow the procedure prescribed by FERA and the concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 6. In the present case, no material has been produced or brought to our notice to establish that the appellant actually operated the account in question. In fact, the adjudicating authority in its order dated 7-7-2008, in para 49 observed as follows :- "49. All considered, I find that the charges of contravention of sections 8(1), 14 and 19(1)(e) of the FERA attributed against the noticee are on sound footing and supported by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the FERA, 1973 attributed against the noticee in the SCN under consideration had been proved. After becoming owner of the funds and securities on death of Shri Satnam Shah (her father), she was under a legal obligation to close the foreign currency accounts and bring the funds lying in the credit of those accounts to India through banking channels. Another course of action could have been to declare the accounts to the RBI and act according to the directions given by the RBI. Similar is the case with the shares also. She should have taken necessary permission from the RBI for holding such shares after becoming owner thereof or she should have disposed of the shares and repatriated the proceeds to India through banking channels. Having f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had actually operated the said account. In fact, as per the adjudicating authority itself had the appellant succeeded in showing that there was a will in existence as per which the funds in the accounts had been assigned to another person, the story would have been different. In view of this, we are of the view that the appellant has succeeded in making out a prima facie case in its favour and the balance of convenience qua the deposit lies in the appellant's favour and insistence on the deposit of the same at this stage would cause undue hardship to the appellant. Accordingly, we set aside the order of the Appellate Tribunal dated 7-11-2008 and the impugned order of the learned Single Judge dated 10-2-2009 and grant waiver of pre-de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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