TMI Blog2016 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit under section 54 of 1973 Act. It is clarified that the views expressed herein are for the purpose of disposal of this appeal and shall not preclude the Tribunal from arriving at its own conclusion on merits in accordance with law. - APO No. 118 of 2016, GA No. 1220 of 2016, WP No. 144 of 2016 - - - Dated:- 5-5-2016 - Girish Chandra Gupta And Asha Arora, JJ. For the Appellant : Mr. N. K. Poddar, Sr. Advocate, Mr. M. C. Ghosh, Mr. V. Tibrewal, advocates For the Respondents : Mr. K. J. Tiwari, advocate ORDER The Court : The subject matter of appeal is a judgment and order dated 8th April, 2016 by which the learned Writ Court dismissed the writ petition. The writ petition was filed challenging an order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of section 9(1)(b) of Foreign Exchange Regulation Act, 1973 in respect of a sum of ₹ 13,96,000/- and penalty of a sum of ₹ 40,000/- and ₹ 15,000/- were imposed on the appellant and his principal respectively. The aforesaid order dated 24th September, 1993 has, however, been set aside by the learned Tribunal by its order dated 19th August, 2009 on the ground that there was no legal evidence to back up the conviction. A fresh show cause notice was issued both against the appellant and his principal, the said Sri S.Jegathesan on 31st July, 2001. It is not in dispute that the fresh show cause notices were issued on the basis of the facts which had already come to the light by virtue of the search which took place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, reported in 2010 (4) SCC 772 wherein dealing with the question of refusal on the part of the Tribunal to waive the deposit, the writ petition was dismissed and the Apex Court opined as follows:- 35. In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable. He, however, has no answer to offer as to why was there delay in issuing the show cause notice for about nine years. He does not als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an one under sub-Section 2 of section 52. Therefore, the appellant could not have challenged the order of the learned Tribunal under section 54 of 1973 Act. The learned Tribunal omitted to notice that there was unexplained delay of nine years in issuing the show cause notice. The learned Tribunal also ignored the fact that the appellant was a mere agent of the principal, Sri S.Jegathesan. Considering the facts and circumstances of the case, we are of the opinion that the Tribunal should have dispensed with the deposit fully. In that view of the matter, the appeal is allowed. The appellant shall be entitled to press the appeal without having to deposit any amount by way of pre-deposit under section 54 of 1973 Act. It is clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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