2016 (6) TMI 3 - HC - FEMA

Refusal to dispense with the amount of deposit of the penalty fully by Foreign Exchange Appellate Tribunal - Held that - The learned Tribunal omitted to notice that there was unexplained delay of nine years in issuing the show cause notice. The learned Tribunal also ignored the fact that the appellant was a mere agent of the principal, Sri S.Jegathesan. Considering the facts and circumstances of the case, we are of the opinion that the Tribunal should have dispensed with the deposit fully. In that view of the matter, the appeal is allowed. The appellant shall be entitled to press the appeal without having to deposit any amount by way of pre-deposit under section 54 of 1973 Act. It is clarified that the views expressed herein are for the purpose of disposal of this appeal and shall not preclude the Tribunal from arriving at its own conclusion on merits in accordance with law.

Summary

Issues:
Challenge to order of Appellate Tribunal for Foreign Exchange refusing to fully dispense with penalty deposit under section 52(2) of Foreign Exchange Regulation Act, 1973.

Analysis:
The judgment pertains to a writ petition challenging an order of the Appellate Tribunal for Foreign Exchange, which refused to fully dispense with the penalty deposit, granting the right to appeal subject to a 15% deposit. The case involved a search in 1991 leading to the seizure of documents and money, confessional statements, and subsequent adjudication imposing penalties. The Tribunal set aside the initial order in 2009 due to lack of legal evidence. A fresh show cause notice was issued in 2001, leading to the current appeal.

The main argument raised was the delay of over nine years in issuing the show cause notice, which was deemed as an act of acquiescence. The appellant's counsel contended that the delay amounted to denial of justice and that the Tribunal failed to consider the appellant's age and financial status. The revenue's counsel argued that the writ petition was not maintainable, citing a Supreme Court judgment emphasizing statutory remedies over writ petitions in such cases.

The High Court found that the Tribunal overlooked the unexplained delay in issuing the show cause notice and the appellant's role as an agent. It was held that the Tribunal should have fully dispensed with the deposit, allowing the appellant to proceed with the appeal without any pre-deposit. The judgment clarified that its views were specific to the appeal and did not restrict the Tribunal from deciding on the merits independently.

In conclusion, the High Court allowed the appeal, directing that the appellant could pursue the appeal without any pre-deposit under section 54 of the Foreign Exchange Regulation Act, 1973. The judgment highlighted the importance of considering delays in legal proceedings and the circumstances of the parties involved in such cases.