TMI Blog2018 (8) TMI 1693X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions open, the orders impugned in these appeals are quashed and set aside. The appeals are restored to the file of the Tribunal for a decision afresh on merits and in accordance with law. The decision be rendered, uninfluenced by any earlier observations, findings and conclusions. We keep open all contentions and clarify that no opinion is expressed thereon. The appeals are allowed accordingly. In the light of this order, nothing survives in the Notices of Motion and they are all disposed of. - Notice of Motion No. 541, 545,537,546,538,543,540,536,542,539,544 of 2017 In FEMA Appeal No. 1 to 11 of 2017 - - - Dated:- 28-8-2018 - S.C. DHARMADHIKARI B.P. COLABAWALLA, JJ. Mr. Rohan Shah with Ms. Divya Jeswant, Deep Roy and Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the settled law in relation to the imposition of penalty by ignoring the settled principle inter-alia that : (i) the imposition of penalty is a penal proceeding; (ii) penalty can only be imposed if the ingredients of the offence are fully made out; (iii) the onus of proof for establishing that the ingredients of the offence are fully made out is on ED; (iv) there can be no imposition of penalty if the conduct of the concerned parties is not contumacious or deliberately in defiance of the law; (v) there can be no imposition of penalty on a person, who was not concerned with the day-to-day affairs of the management of the issues which have caused the alleged breach; (vi) there must be specific evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are allowed accordingly. In the light of this order, nothing survives in the Notices of Motion and they are all disposed of. 8. In the event an application is made for an out of turn and expeditious hearing of these appeals, the Tribunal shall sympathetically consider it, only because the issue is pending since 2008 and the matter has gone back to the Tribunal repeatedly. 9. In the passing we invite the attention of the Registrar (Original Side)/Prothonotary Senior Master of this Court so also the Additional Prothonotary Senior Master (Judicial) that these appeals are filed in this Court aggrieved and dissatisfied with an order passed by the Appellate Tribunal. That is a creature of the Foreign Exchange Management Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Explanation .- In this section High Court means - (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain. 11. From a bare reading of this section, it is apparent that the High Court is a Court of further appeal. This Court exercises such powers in its Civil Appellate Jurisdiction. That Civil Appellate Jurisdiction enables it to exercise appellate powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorrect understanding of the Scheme of the High Court Appellate Side Rules. FERA and FEMA Appeals, being treated as First Appeals, but arising out of a Appellate order were hitherto filed and heard on the Appellate Side. Such Appeals, irrespective of the residence or place of business of the appellant, were also filed regularly in the Appellate Side Registry because of the wording of Rule 3 quoted above. No such Rule has been made in the Bombay High Court Original Side Rules. Further, except for the recent trend, the highest official in the Original Side Registry is not a member of our District Judiciary. Hence, advisedly the FERA and FEMA Appeals are filed in the Appellate Side Registry so that some procedural aspects in relation thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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