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2025 (4) TMI 1544 - HC - FEMATribunal exercising its discretion by reducing the pre-deposit of penalty only to 20% - Tribunal has exercised its discretion in the context of second proviso to Section 19(1) of the Act or not? - HELD THAT - Once the legislature fixes the discretion to any authority it is to the satisfaction of that authority it should exercise such discretion. Moreover the words used in the second proviso to Section 19(1) also states that the appellate Tribunal is of the opinion . It means if the Tribunal forms an opinion that some discretion has to be exercised in a particular case then only such a discretion has to be used. Therefore with regard the question of forming an opinion it is fully left to the discretion of the Tribunal. Whether such opinion that the Tribunal had formed was based on the merits of case cannot be gone into by sitting over on appeal by this Court and therefore ultimately such kind of discretion if it is exercised by the original authority to whom such power of discretion is vested it normally would not be touched upon by the appellate forums. Here in the case in hand in fact the Tribunal has exercised its discretion by reducing the pre-deposit of penalty only to 20%. Therefore it is a case where the Tribunal after having formed an opinion based on the facts and circumstances of the case has reduced the pre-deposit of penalty to only 20%. Hence it cannot be stated that the Tribunal has not exercised its discretion under Second proviso to Section 19(1) of the Act. The imposition of penalty is also for the purpose of safeguarding the realization of penalty as that also has to be taken into account. Therefore by striking a balance between undue hardship and safeguarding the realization of penalty in between the two the discretion of the Tribunal has to be exercised. Such a discretion cannot be exercised in the manner expected by the litigant in any lis. Since the discretionary power vested under the second proviso to Section 19(1) of the Act to the Tribunal has been exercised properly in this case we do not find any reason to interfere with the same.
The core legal questions considered by the Court revolve around the exercise of discretion under the second proviso to Section 19(1) of the Foreign Exchange Management Act, 1999 (FEMA), specifically:
Issue-wise Detailed Analysis: 1. Exercise of Discretion under the Second Proviso to Section 19(1) of FEMA Legal Framework and Precedents: Section 19(1) of FEMA mandates a pre-deposit of the penalty amount when an appeal is filed against the adjudicating authority's order. The first proviso makes this deposit mandatory ("shall deposit"), while the second proviso grants the appellate Tribunal discretion to waive the deposit if it opines that such deposit would cause "undue hardship" to the appellant, subject to conditions to "safeguard the realization of penalty". The Delhi High Court's decision in the "Nimesh Suchde" case, relying on the Supreme Court's ruling in Monotosh Saha vs. Special Director, Enforcement Directorate, elucidates that "undue hardship" implies economic hardship that is disproportionate or excessive relative to the requirement, and that discretion must balance this hardship against safeguarding penalty realization. Court's Interpretation and Reasoning: The Court emphasized the mandatory nature of the first proviso requiring pre-deposit and clarified that the discretion under the second proviso is conditional and limited. The Tribunal's role is to form an opinion based on facts and circumstances whether waiver or reduction is warranted due to undue hardship, while ensuring penalty realization is not compromised. The Court noted that the Tribunal reduced the pre-deposit to 20% of the penalty amount, which constitutes a significant exercise of discretion providing relief to the appellants. Key Evidence and Findings: The Tribunal's order explicitly records the reduction of the pre-deposit amount to 20%, indicating a conscious balancing of hardship and penalty safeguarding. The appellants' contention that the Tribunal did not exercise discretion was rejected as the Tribunal's order itself demonstrates the exercise of discretion. Application of Law to Facts: The Court held that the Tribunal's discretion was exercised within the statutory framework, and the reduction to 20% pre-deposit was a valid middle ground between complete waiver and full deposit. The appellants' plea for complete waiver was found not to be supported by sufficient evidence of undue hardship that would justify such waiver. Treatment of Competing Arguments: The appellants argued that the Tribunal failed to consider undue hardship adequately and that a full waiver should have been granted. The respondent Enforcement Directorate argued that the mandatory pre-deposit requirement must be respected and that the Tribunal had already exercised discretion by reducing the amount. The Court sided with the respondent, finding no error in the Tribunal's approach. Conclusion: The Court concluded that the appellate Tribunal properly exercised its discretion under the second proviso to Section 19(1) of FEMA by reducing the pre-deposit to 20%, and there was no ground for interference. 2. Procedural Fairness and Opportunity of Hearing Legal Framework and Precedents: The principles of natural justice require that parties be given a fair opportunity to present their case before adverse orders are passed. The appellants contended that the adjudicating authority passed the penalty order without affording a full hearing, especially during the COVID-19 pandemic, which affected their ability to respond. Court's Interpretation and Reasoning: The Court acknowledged the appellants' plea that the adjudicating authority issued the notice during the peak COVID-19 period and did not provide further opportunity before passing the final order. However, the Court clarified that this procedural grievance relates to the merits of the penalty order and does not directly affect the Tribunal's exercise of discretion under Section 19(1) regarding pre-deposit. Key Evidence and Findings: The appellants did not demonstrate that the procedural lapse affected the Tribunal's discretion or that the Tribunal failed to consider such factors. The Court observed that the Tribunal's discretion is primarily concerned with the hardship of pre-deposit and safeguarding penalty realization, not the merits of the penalty itself. Application of Law to Facts: The Court held that the appellants' remedy against the adjudicating authority's procedural conduct lies in challenging the penalty order itself on merits, not in the pre-deposit waiver application. The Tribunal's discretion on pre-deposit is a separate consideration. Treatment of Competing Arguments: The appellants urged that the lack of opportunity should weigh in favor of full waiver of pre-deposit. The respondent contended that this issue is irrelevant to the pre-deposit discretion. The Court concurred with the respondent's position. Conclusion: The Court did not find the procedural grievance sufficient to interfere with the Tribunal's exercise of discretion on pre-deposit. 3. Scope of Judicial Interference in Appellate Tribunal's Discretion Legal Framework and Precedents: Discretionary powers vested in statutory authorities are generally not interfered with by courts unless exercised arbitrarily or without application of mind. The phrase "the Appellate Tribunal is of the opinion" indicates that the Tribunal's subjective satisfaction governs the exercise of discretion under the second proviso to Section 19(1). Court's Interpretation and Reasoning: The Court emphasized that it cannot sit in appeal over the Tribunal's opinion or discretion unless there is a manifest error or failure to exercise discretion. The Tribunal's reduction of pre-deposit to 20% reflected a proper exercise of discretion based on facts and circumstances. Key Evidence and Findings: The Tribunal's order showed a clear opinion and rationale for the reduction. The Court found no evidence of arbitrariness or non-application of mind. Application of Law to Facts: The Court declined to interfere with the Tribunal's discretion, holding that the exercise of discretion was within the bounds of law and reason. Treatment of Competing Arguments: The appellants sought interference on the ground of non-exercise or improper exercise of discretion. The respondent argued that the discretion was duly exercised and is not subject to judicial review except on limited grounds. The Court agreed with the respondent. Conclusion: The Court held that the Tribunal's discretion under the second proviso to Section 19(1) was validly exercised and not amenable to interference. Significant Holdings: "The language used in the first proviso to Section 19(1) reads as follows: '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.' Here, the word 'shall' has been used by the legislature. Thereby, it has become mandatory that, whenever such appeals are filed against the levying of penalty, the penalty amount shall be deposited as directed by the authority." "The second proviso states that, '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.'" "By striking a balance between 'undue hardship' and 'safeguarding the realization of penalty', in between the two, the discretion of the Tribunal has to be exercised. Such a discretion cannot be exercised in the manner expected by the litigant in any lis. Since the discretionary power vested under the second proviso to Section 19(1) of the Act to the Tribunal has been exercised properly in this case, we do not find any reason to interfere with the same." "Whether such opinion that the Tribunal had formed was based on the merits of case, cannot be gone into by sitting over on appeal by this Court and therefore, ultimately such kind of discretion if it is exercised by the original authority to whom such power of discretion is vested, it normally would not be touched upon by the appellate forums." In conclusion, the Court held that the appellate Tribunal validly exercised its discretion under the second proviso to Section 19(1) of FEMA by reducing the pre-deposit of penalty to 20%, balancing the appellants' claim of undue hardship against the need to safeguard penalty realization. The procedural grievance regarding opportunity of hearing before the adjudicating authority was not found to impact the Tribunal's discretion on pre-deposit. The Court declined to interfere with the Tribunal's discretion, emphasizing the mandatory nature of pre-deposit and the limited scope for waiver. Consequently, all appeals were dismissed.
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