TMI Blog2008 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... t requiring further deposit - 5188 OF 2008 - - - Dated:- 21-8-2008 - JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Calcutta High Court dismissing the appeal filed by the appellant under Section 35 of Foreign Exchange Management Act, 1999 (in short the 'Act'). 3. Background facts in a nutshell are as follows: Memorandum was issued by the Enforcement Directorate, Ministry of Finance. On the basis of certain statements recorded it was indicated therein that M/s Godsons (India) and its proprietor, the present appellant had acquired foreign exchange contravening the provisions of Section 8(1) of the Foreign Exchange Regulation Act, 1973 (in short the 'Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-deposit and, therefore, the order of the Tribunal as affirmed by the High Court does not suffer from any infirmity. 6. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 7. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653) and M/s Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 SC 61) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330). 8. It is true that on merely establishing a prima facie case, interim order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty." 11. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the realization of penalty". Therefore, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med proper to safeguard the realization of penalty. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate condition as required to safeguard the realization of penalty. 16. The above position was highlighted in Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006 (13) SCC 347). The decision was rendered in relation to Section 35F of the Central Excise Act, 1944 where also identical stipulations exist. 17. In the instant case Tribunal has rightly observed that the rival stands have to be examined in detail with reference to material on record. 18. The only other question that needs to be examined is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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