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TMI Blog2013 (11) TMI 1814X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant/applicant for the alleged contravention that the appellant/applicant without any general or special permission of Reserve Bank of India received amounts totalling to Rs. 2,47,99,350/- in India, otherwise than through an authorized person, by order or on behalf of his friend Madan, a person resident outside India, and thereby he has contravened the provisions of section 3(c) of the Foreign Exchange Management Act, 1999 (in short FEMA) to the extent of said amount and it has also been found that an amount of Rs. 21,75,000/- recovered and seized from his residential premises was an amount involved in the said contravention of the provisions of FEMA which has been confiscated to the Central Government in terms of section 13 (2) of FEMA. 2. We have heard the ld. Counsel for the appellant/applicant and the Ld. ALA on the application and have perused the records carefully. The application has been filed in view of the second proviso to sub-section (1) of section 19 of FEMA, which reads as under:-- "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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of the Revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." 11. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of the Revenue". Therefore, while dealing with the application twin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interests. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analyzing factual scenario involved in a particular case. 10. Section 19 of the Act reads as follows: "19(1). Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. CCE [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 whether any reduction of the amounts to be deposited as directed by the Tribunal is called for. 19. Undisputedly the appellant had deposited the amount which was directed to be deposited. However, for the balance amount demanded with a view to safeguard the realization of penalty the appellant shall furnish such security as may be stipulated by the Tribunal. On that being done, the appeal shall be heard without requiring further deposit if the appeal is otherwise free from defect.' 3. It is apparent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand which may be determined only after going depth into the merits of the case at the time of final hearing. 6. Regarding undue hardship which may be caused due to the deposit of penalty, the ld. Counsel has submitted that the financial condition of the appellant is very weak. He has been residing in House No. 1969, Rajpura Town, Punjab, on rent from the last many years. In support of his arguments he has filed an affidavit of Shri Harish Kumar S/o Shri Pokhar Dass, R/o House No. 1983, Rajpura Town, Distt. Patiala, Punjab. On the perusal of the affidavit and a copy of the deed of conveyance filed therewith makes it abundantly clear that the father of the appellant Late Shri Kanwar Bhan had been residing in the aforesaid rented house No. 1969 and after the death of his father the appellant has been residing in that house. Further, the financial status of the appellant has been clarified in paragraphs 3, 4 & 5 of the application filed by him which read as under: "3. The applicant is an unemployed person living with the generosity of the Management of the nearby Gurudwara where the applicant and his family are having their daily meals in return of his help to the distributi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... screet enquiry and is also based on the information gather from the people of the locality. The names of the persons who gave the information have not been disclosed in the report. As such, the report does not effectively disproves the facts stated in the said affidavit based on the document. The Ld. ALA has not effectively confronted the status of the appellant as disclosed in the said affidavit and in the application. 8. In view of the above discussion, it is obvious that the pre-deposit of penalty imposed on the appellant would cause undue hardship to him. As such, this Tribunal in the interest of justice dispense the appellant with the pre-deposit of the penalty imposed on him. So far as the safeguard of the realization of penalty is concerned, there is allegation on the appellant to be active in hawala business and for this reason, we think it proper under the circumstances to impose the condition on such dispensation of pre-deposit that for safeguarding the realization of the penalty imposed on him, the appellant is directed to give bank guarantee amounting to the penalty imposed to the respondent for its realisation within 45 days from the date of receipt of the copy of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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