TMI Blog2014 (12) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of law on this point. I am in agreement with the views expressed in the order of Hon’ble Member Dr. H.K. Mudgil in his order dated 4-8-2014 with regard to Paragraphs 35 to 37 of the order of the Hon’ble Member Dr. S.D. Singh. In the light of my agreement the same shall be treated to be the majority opinion of the Tribunal including those who first heard it. - imposition of condition of depositing 40% and furnishing bank guarantee for 60% will adequately safeguard the interest of the revenue. - 9-19/2013 - - - Dated:- 24-12-2014 - Justice Vinay Kumar Mathur, Chairperson Shri Aman Dave along with Deep Roy, Advocates, for the Appellant. Dr. Samsudeen, Additional Director (Prosecution) assisted by Ms. Protiti Roy and Ms. Natasha Sarkar, Legal Consultants, for the Respondent. ORDER I have heard Shri Aman Dave, advocate along with Shri Deep Roy, advocate representing the appellants and Dr. Samsudeen, Additional Director (Prosecution) assisted by Ms. Protiti Roy, Legal consultant and Ms. Natasha Sarkar, Legal Consultant representing the respondent, Enforcement Directorate and have also carefully perused the records. 2. The instant appeals have been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as heard by me on 5th November, 2014. 4. Ld. counsel for the appellants has submitted that the entire matter relates to three remittances. Remittance I was sent by the appellant Manoj Badale to BCCI directly, while remittance 2 consisting of 4 amounts of which three were sent by M/s. ND Investments LLP and 1 was sent by the appellant Manoj Badale to M/s. Jaipur IPL The third remittance was sent by M/s. EMSH to BCCI directly. The total amount sent through the 3 remittances comes to ₹ 33,22,45,445.23. Submission is that vide impugned order the penalty of ₹ 23.50 crores has been imposed in respect of remittance 1 3 for violation of Section 6(3)(b) of FEMA, 1999 read with Regulation 5 and Para 8 of schedule I of Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulation 2000 and also read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transaction) Regulation, 2000. It has been further submitted that in addition to the above a penalty of ₹ 4.80 crores has been imposed in respect of remittance No. 2 for violation of section 6(3)(b) read with Regulation 5 and Para 8 of Schedule 1 of TISPRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Member Dr. S.D.Singh whereby the appellants have been directed to deposit 70% of the penalty imposed and to furnish bank guarantee for the remaining 30%, the fact of enormity of the amount has not been taken into account. The provision under Section 19(1) FEMA of pre-deposit does not imply that the appellants even after having a prima facie case in their favour and financial constraints be directed to deposit almost ₹ 70 crores in cash to be entitled for disposal of their appeals on merits. Thus, in this view the dissenting order delivered by the other Hon ble Member Dr. H.K. Mudgil regarding quantum of pre-deposit appears to be more rational, though through this order also the appellants have been directed to make a deposit of 40% in cash and furnish bank guarantee for the balance 60% which almost comes to ₹ 40 crores. Therefore, in view of this it has been prayed that a pragmatic and rationale approach be adopted by issuing appropriate directions. 5. Dr. Shamsuddin, Additional Director (Prosecution) has defended the order passed by Hon ble Member Dr. S.D. Singh and has submitted that the order of Dr. Singh, Hon ble Member is well reasoned and discussed, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited to Paragraphs 35, 36 and 37 of the order of Dr. S.D. Singh, Hon ble Member. There is no disagreement regarding findings recorded by Dr. S.D. Singh, Hon ble Member from Paras 1 to 34 of his order dated 1-8-2014. In Paragraph 6 of the Order of Dr. H.K. Mudgil, Hon ble Member the other member of the Bench, who presided over the Bench has recorded that: - 6. After perusal of paragraphs 35 to 37 of the order of Dr. S.D. Singh, Hon ble Member, I feel that we should not express our opinion at the primary stage in the instant appeals without going into the merits of the case at the stage rather we should dispose of the present applications on the basis of the principles of natural justice .. . In para 7 of his order Dr. H.K. Mudgil, Hon ble Member has recorded that :- 7. Taking into consideration the abovementioned (provisos), coupled with discussions and without expressing any opinion on the merits of the case, at this stage, we feel that the ends of justice will be met if we grant dispensation of pre-deposit of the penalty amount to the appellants in appeal Nos. 9-19/2013, till the disposal of the appeals subject to payment of 40% of the respective penalties imposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraph 37 the operative portion runs as follows:- 37 . In view of the above discussions we dispose of the applications for stay and waiver of pre-deposit of penalty directing the appellants to deposit 70% of the respective penalties imposed on them and to give bank guarantee for the rest of 30% to the respondent within 45 days from the receipt of this order. 13. Hon ble Supreme Court in Union of India Ors v. Kundan Rice Mills Ltd. (2009) 1 SCC 553 = 2008 (232)E.L.T.385 (S.C.) in paragraph 4 has categorically observed that while dealing adjudicating an interim matter :- 4. We find that while adjudicating an interim matter, the High Court has given a categorical finding on merits holding inter alia that there is nothing to show that even prima facie, goods are liable to confiscation. The High Court appears to have decided the matter on merits finally even though that was not the stage for doing so and was beyond the scope of adjudication of the writ petition. This is not the way the High Court should have dealt with the matter. Apart from that, the High Court has not indicated any reason as to why the condition of execution of indemnity bond equivalent to seizure v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh both the amounts directed to be deposited in the two orders appear to be quite large, but considering the scope of Section 31 of FEMA, 1999 wherein the majority of judgment/order has to prevail, I am of the view that the order of Hon ble Member Dr. H.K. Mudgil granting partial waiver whereby the appellants have been directed to deposit 40% of the penalty each and furnish bank guarantee for the remaining 60% appears to be more appropriate in the given circumstances of the matter. 16. I am in agreement with the views expressed in the order of Hon ble Member Dr. H.K. Mudgil in his order dated 4-8-2014 with regard to Paragraphs 35 to 37 of the order of the Hon ble Member Dr. S.D. Singh. In the light of my agreement the same shall be treated to be the majority opinion of the Tribunal including those who first heard it. As regards the judgment in Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. - (2006) 13 SCC 347 cited by Dr. Shamsuddin, Additional Director (Prosecution), I am of the view that imposition of condition of depositing 40% and furnishing bank guarantee for 60% will adequately safeguard the interest of the revenue. 17. In view of the above Para ..... X X X X Extracts X X X X X X X X Extracts X X X X
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