TMI Blog2009 (7) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... fly stated the material facts of this case are that appellant was issued a show cause notice dated 16 th October, 2001 under Sections 8(3) and 8(4) of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA, 1973 ). In the show cause notice, it was stated that though the appellant had in 1998-1999 imported marble slabs/blocks from M/s. Arfound Trading Establishment, Dubai, Vital Pharmaceuticals, London, D. Martino, Silvestro, Italy etc. at a declared value of US$ 3,49,220.80, the Custom department on examination of the said imports had loaded the value of the said marbles at the rate of US$ 300 per metric tonne as the said marbles were restricted items under the Exim Policy. Thus, according to the show cause notice, the enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers for the aforesaid contravention 3. The Appellate Tribunal for Foreign Exchange dismissed the appellant s application for dispensation of pre-deposit of penalty and further observed that if the penalty amount was not deposited within 30 days, the appellant s appeal before the Appellate Tribunal would also stand dismissed. It is pertinent to mention that the Appellate Tribunal based its conclusion on the ground that the goods imported were allegedly of higher value and, therefore, it was automatic that the kind and quality of imported goods were different. 4. As mentioned hereinabove, even the appellant s writ petition filed against the order of Appellate Tribunal was also dismissed by learned Single Judge of this Court. 5. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be undue‟ it must be shown that the particular burden to have to 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. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 8. As the present case pertains to Sections 8(3) and 8(4) of FERA, 1973, the same are reproduced hereinbelow for ready reference: 8. Restrictions on dealing in foreign exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes for which it was acquired. 9. On a perusal of the file, we are prima facie of the opinion that no independent finding of under valuation of goods has been arrived at by the Adjudicating Officer. In fact, Adjudicating officer has reached the said conclusion only on the basis of the order passed by the Custom Authorities, which in turn is based on the premise that goods were imported by the appellant without any import licence. However, the admitted position before us is that goods had been imported after taking due permission from the Reserve Bank of India. Consequently, we have grave doubts as to the applicability of Sections 8(3) and 8(4) of FERA, 1973. 10. It is a settled position of law that if sustainability of adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
