9911796707
TMI Blog2023 (10) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the order, we enquired whether the appeal was still pending and are informed that the appeal, numbered as Appeal No.265 of 2003, is pending on account of pendency of this Civil Miscellaneous Appeal. 2. The appellant has filed the above said appeal challenging an order passed by the second respondent, the Special Director of Enforcement dated 14.07.2003. The appellant was the proprietor of one M/s.EI Shaddai Enterprises, engaged in the export of chillies, onions, potatoes, rice, salt and other condiments. 3. A show cause notice has been issued for contravention of Section 18(2) of the Foreign Exchange Regulation Act, 1973 (in short 'FERA') read with various notifications and Section 18(3) of FERA for failure to realize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the submission of documentation in relation to the export transactions. 8. After soliciting the response of the appellant, the authority concludes that the charges laid under two show cause notices were proved and that the noticee was guilty of the contraventions thereunder. Penalties of Rs. 8,00,000/- and Rs. 1,20,00,000/- were levied in respect of the two show cause notices. 9. It is as against the above order levying penalty that an appeal has been filed before the Tribunal. Section 19 of the FEMA requires the appellant to deposit the entirety of the disputed amounts as a precondition to maintain the appeal before the Tribunal. The second proviso under Section 18 of the FEMA vests authority in the Appellate Tribunal to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant would inform the Bench that the appeal was last heard on 25.09.2023 and it was at the stage of filing of written submission. He urges that the order of the Tribunal has not taken note of the undue hardship that faces the appellant, and ought to have waived the pre-deposit. 13. The Tribunal has recorded the relevant facts in the impugned order, and has waived 60% of the total penalty of Rs. 1.28 crores, calling upon the appellant to deposit only 40% thereof, for which a period of 30 days was granted. The appeal was liable to be dismissed if the condition was not complied by then. 14. The learned counsel for the appellant has relied upon a judgement of the Supreme Court in Monotosh Saha Vs.Special Director, Enforcement Directora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of the State as well. 18. Taking a cue from the order in the case of Monotosh Saha, we made a similar offer to the appellant to remit at least a portion of the amount in order that we may consider directing the Tribunal to hear the appeal. Learned counsel, upon instructions, is categoric that no amount of the penalty can be remitted, as the appellant has absolutely no available resources. 19. In Nimesh Suchde Prop.Siddharth Polymers, the Delhi High Court, on the facts of that case, and taking note of judgment in Monothosh Saha felt, prima facie, that the appellant had satisfied the condition of undue hardship. The question that arose related to the valuation of a consignment for the purpose of levy of import duty. 20. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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