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TMI Blog2014 (12) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transaction) Regulations 2000, also read with para 8 of Schedule I to Regulation 5(1) of Foreign Exchange Management (Transfer or Issue of Security by a person resident outside India) Regulation 2000 whereby penalty under Section 13(1) of FEMA has been imposed. The adjudicating authority has imposed a total penalty of 98.35 crores against all the appellants. 3. Aggrieved from the impugned order the appellants have preferred the instant appeals. Applications for stay and waiver of pre-deposit have been separately moved by the appellants. The appeals were listed before the Special Division Bench consisting of Dr. H.K. Mudgil, Hon'ble Member and Dr. S.D. Singh, Hon'ble Member. The Division Bench after hearing the arguments of Ld. counsel for the appellants and Ld. Additional Director (Prosecution) reserved the order on 28-4-2014 on the applications of dispensation of predeposit of penalty. On 1-8-2014 a detailed order was drafted and signed by one of the Hon'ble members of Bench, Dr. S.D. Singh. However, the other Hon'ble Member, Dr. H.K. Mudgil did not agree in respect of findings recorded in paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Twenty 20 cricket competition. The invitation for tender was open for all over the world. As consideration for right to operate a franchise in the IPL, each franchise was required, apart from other things, to pay to BCCI a fee in 10 equal annual instalments over a period of 10 years and each bidder was required to deposit of US$ 5 million as single party deposit and was also required to have operating company in India for the first three years. Submission is that on 22-1-2008 M/s Emerging Media IPL made over to operate franchise of which Manoj Badale was the sole shareholder, remitted a deposit as remittance No. 1 to BCCI. The bid of EMPIL for Jaipur IPL was accepted and on 8-3-2008 Jaipur IPL was incorporated. The other submission is that in April-May, 2008 ND Investment LLP and Manoj Badale remitted FDI in equity of JIPL which has been shown as remittance No.2. Other submission is that on 5-5-2012 M/s EMSH was incorporated in Mauritius and on 9-6-2008 BCCI asked about Manoj Badale to make payments for the first instalment for the franchise company within 24 hours. In pursuance thereof on 20-6-2008 EMSH paid to BCCI directly the first instalment of 10% of the franchise fee throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits does not show that the contraventions were conducted by the appellants. The interpretation of compounding has been correctly interpreted not have been implied admission of the contravention. While Dr. M.K. Mudgil, Hon'ble Member has disagreed with the contention of the other Hon'ble Member. In the order of Dr. H.K. Mudgil, Hon'ble Member the existence or non-existence of prima facie case has not been looked into. The second proviso of Section 19(1) of FEMA 1999 has not been taken into consideration absolutely in the order of Dr. H.K. Mudgil, Hon'ble Member as to what undue hardship will be caused to the appellants. Reliance has been placed on the judgment of Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006) 13 SCC 347 = 2006(204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.). 6. I am of the considered view that the scope of the reference made in case of difference of opinion of two Hon'ble members under Section 31 of FEMA, 1999 is very narrow and limited. It is not open for the Chairperson/third member to re-write the judgment/order, according to his understanding. He can not disagree with the findings of both the Hon'ble Members but has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that the difference of opinion of Dr. H.K. Mudgil, Hon'ble Member is limited to the fact that Dr. S.D. Singh, Hon'ble Member has expressed his opinion at the preliminary stage in the instant appeals without going into the merits of the case and also regarding the ratio of amount to be deposited by each appellant and furnishing of bank guarantee. 10. From the perusal of Paragraphs 35 to 37 of the order of Dr. S.D. Singh, Hon'ble Member, it is apparent that he has made certain observations which tantamount to expression of opinion at the stage of passing an interim order whereby the applications for stay and waiver of pre-deposit were being disposed of. In Para 35 of his order Dr. S.D. Singh, Hon'ble Member has recorded that:- "35. It is obvious that taking into account the above points there is no unfair advantage taken in this case by the appellants. There is no loss of exchequer. On the contrary huge amounts of money have been invested and spent in India. As such even in the compounding the quantum of sum to be paid for compounding would be far lesser than the penalty imposed". 11. In Paragraph 36 of the order of Dr. S.D. Singh, Hon'ble Member has record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned orders of the High Court. Let the High Court hear the matters afresh. To avoid unnecessary delay, let the parties appear before the High Court, without further notice, on 17-1-2008." 14. In view of the judgment of the Hon'ble Supreme Court and the settled legal position in this context, I am of the view that at the stage of passing interim order there is no scope of expressing final opinion in the matter. By expressing final opinion, the views once taken at the preliminary or early stage can not be changed at the time of final adjudication on merits conveniently. Therefore, the :observations made in Paragraphs 35 and 36 of the judgment by Dr. S.D.Singh, Hon'ble Member, through which conclusive opinion touching the merits appears to have been expressed is against the propriety and settled legal position of law on this point. 15. From the perusal of both the orders of Hon'ble Members, I am of the view that both the Hon'ble Members have found the appellant's case fit for partial waiver of pre-deposit of penalty. While in para 37 of the order of Dr. S.D. Singh, Hon'ble Member was of the view that the appeals should deposit 70% of the penalty imposed against each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Member in the 16th line from the top beginning from "Ld. counsel for the appellants" up to "... .... hardship to the appellants" shall not form part of the majority order and shall be deemed to have been omitted. In the same paragraph last 2 lines beginning from "But a cursory".......up to "concerned company" shall also not form part of the majority order & shall be deemed to have been omitted. As regards Paragraph 37 of the order of Dr. S.D. Singh, Hon'ble Member the same shall also not form part of the majority order & shall be deemed to have been omitted instead extract of Para 7 of the order of Hon'ble' Member Dr. H.K. Mudgil as quoted in Paragraph 8 of this order shall stand substituted as majority views of the Tribunal. Paragraphs 1 to 34 of the order of Dr. S.D. Singh, Hon'ble Member in respect of which there is no disagreement shall form the majority opinion of the two Hon'ble Members who earlier heard this matter. Reference is accordingly disposed of. 18. The Registrar is directed to send a copy of this order to all the appellants and respondent. The appeal be listed on 4th February, 2015 for reporting the compliance of the Order/final hearing before the regular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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