TMI Blog2008 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... pal, J. REPRESENTED BY : Shri Mathews J. Nedumpara, Advocate, for the Appellant. S/Shri Dalip Mehra with Rajiv Ranjan and Rakesh Tiku, Advocates, for the Respondent. [Judgment per : Reva Khetrapal, J.]. This appeal is directed against the order dated 13th September, 2005 passed by the learned Single Judge whereby the learned Single Judge dismissed the writ petition on the ground of non-compliance with the orders dated 31-5-2005 directing the petitioner to deposit 25% of the penalty within six weeks from the date of the order. 2. The facts emerging from the record are that by a detailed order dated 26th February, 1992, the Special Director, Directorate of Enforcement, New Delhi, after recording the evidence of the parties and affording personal hearing to the appellant on a number of dates, that is, 31-5-1990, 2-7-1990, 24-10-1990, 14-11-1990 and 28-11-1990 held that in view of the investigations, it appeared that the appellant had received a total payment of Rs. 1,55,87,155/- during the period 1980 to 1987 from one Shri Ranjit Saha, a person resident in India, at the instructions of his uncle Shri Pabitra Saha of Mymensingh, Bangladesh, a person resident outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DLA, Directorate of Enforcement, New Delhi Office Folder 4. Despite the passing of the above order, the appellant failed to make pre-deposit of 50% of the amount of penalty within 60 days and instead filed an application for modification of the order, which was taken up for hearing on 28th May, 2004 and was also dismissed on the same day as not maintainable. Eventually, on 8th September, 2004, the appeal itself was dismissed for non-compliance of the order dated 13-1-2004 directing the appellant to deposit 50% of the amount of penalty, that is, Rs. 5 lakhs. A review petition seeking recall/review of the order of the Appellate Tribunal dated 8th September, 2004 met with a similar fate and was also dismissed, resulting in the appellant filing a writ petition before this Court, being WP(C) No. 10109/2005. 5. The said writ petition came up for hearing before a learned Single Judge of this Court on 31st May, 2005 when the following order was passed : In The High Court of Delhi at New Delhi W.P.(C) 10109/2005 lakshman C. Saha ....Petitioner Through Mr. J. Nedumpara Mathews, Adv. Versus Special Director of Enforcemen ....Respondent Through Mr. Rakesh Tiku, Adv. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty within six weeks. A perusal of the Order shows that a detailed hearing was granted to the Petitioner on that date. The only intervening change is the change in the Roster. This is not a ground for modifying an Order previously passed, which has not even been complied with. I find no merit in the application. Dismissed. Sd/- (Vikramajit Sen, J.) July 12, 2005 7. On 13th September, 2005, after perusal of the orders dated May 31, 2005 as well as July 12, 2005 passed on the review petition, the impugned order dismissing the writ petition on the ground that the appellant s case did not warrant the exercise of jurisdiction under Article 226 of the Constitution was passed against which the present appeal has been preferred. 8. We have gone through the records and heard the learned counsel for the appellant who has assailed the order of the learned Single Judge as cryptic and submitted before us that the appellant s failure to comply with the interim order can have only one consequence in law, i.e., that he will not be protected against the prosecution proceedings. Learned counsel for the respondent, on the other hand, sought to support the order on the ground that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er made by an Adjudicating Authority, other than those referred to in sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal : Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government : Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. 11. A bare glance at the provisions of sub-section (2) of Section 52 is sufficient to show that the pre-condition for the right to prefer an appeal to the Appellate Board is the deposit of the sum imposed by way of penalty under Section 50. The second proviso to sub-section (2), however, provides that where the Appellate Board is of the opinion that the deposit to be made will cause undue hardship to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance of convenience qua deposit or otherwise, irreparable loss, if any, to be caused in case waiver is not granted and safeguarding of public interest. 15. In S. Vasudeva v. State of Karnataka and Ors., AIR 1994 SC 923, it was held that under Indian conditions the expression undue hardship is normally related to economic hardship, but it is now well established that undue hardship means something which is not warranted by the conduct of the claimant or is very much disproportionate to it. Undue hardship is caused when hardship is not warranted by the circumstances. (see Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India and Ors., 2008 AIR SCW 151). 16. In Oxford English Dictionary, the meaning of word undue hardship is given as unwarranted or inappropriate because excessive or disproportionate. Strouds Judicial Dictionary gives the following meaning to the word undue hardship as per judicial decisions cited therein : For a hardship to be undue it must be shown in my opinion that the particular burden to the applicant to have to observe or perform the requirement is out of proportion to the nature of requirement itself and the benefit which the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% of the amount of penalty as pre-condition for the disposal of the appeal was justified. Despite this, the learned Single Judge, on a writ petition filed by the appellant assailing the order, not only issued notice of the writ petition but scaled down the amount of pre-deposit to 25% of the penalty as a pre-condition for the consideration of the writ petition. The appellant, however, failed to comply even with the said condition and thus his writ petition came to be dismissed by the order of the learned Single Judge, which is under challenge before us. 19. While considering the effect of non-compliance of the order passed under Section 129(1) of the Customs Act, 1962 for deposit of the penalty amount, the Hon ble Supreme Court in Navin Chandra Chhotelal v. Central Board of Excise and Customs and Ors., 1981 (8) E.L.T. 679 (S.C.) = (1971) 1 SCC 289 held that where pre-deposit was not made in compliance with the provisions of the Section or with any order that may be passed thereunder, the Appellate Authority is fully competent to reject the appeal for non-compliance with the statutory provisions and in such a case the Appellate Authority cannot proceed to hear an appeal on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from the appellant has been deposited by him with the Commissioner. According to the proviso to the above clause, where in any particular case the Judge is of opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof, either unconditionally or subject to such conditions as he may deem fit. The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in case he seeks to file an appeal against a tax or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The requirement about the deposit of the amount claimed as a condition precedent to the entertainment of an appeal which seeks to challenge the imposition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income-tax Act, 1922. The proviso to that section provided that ... no appeal shall lie against an order under sub-section (1) of Section 46 unless the tax had been paid . Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it. A disability or disadvantage arising out of a party s own default or omission cannot be taken to be tantamount to the creation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 18,000/- per annum. Significantly, only an unsigned typed copy thereof was filed, without even placing the original on record. Not only this, the appellant/petitioner averred that though he had sought income certificates from the revenue authorities, the same had been refused to him, but not a scrap of paper to substantiate even this contention was placed on record by him. 24. It is also not in dispute that in the meanwhile, the appellant has been convicted by the Court of the Metropolitan Magistrate, 5th Court, Calcutta under Section 57 of the Foreign Exchange Regulation Act, 1973 for not depositing the penalty which was the subject matter of the appeal before the Appellate Tribunal for Foreign Exchange and the said conviction has been upheld by the District Court in the appeal preferred by him therefrom. Apparently, the appellant thereafter preferred a criminal revision petition before the High Court of Calcutta, which was listed for final hearing on 6th August, 2007. The fate of the said criminal revision petition, however, has not been disclosed by the appellant to this Court. 25. We are referring to the aforesaid facts to show that the conviction of the appellant un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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