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TMI Blog2009 (5) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ghteen Lakhs only), one bunch of loose sheets (29 in number) and one currency note of Rs. 50/- bearing No. 5AA 69JJ95, as per the details given in the panchnama. Follow-up searches were conducted at various places, including the premises of one Raj Kumar Kedia at Calcutta, one J.P. Soni at Delhi and Rajiv Gopalani at New Delhi. The documents and other investigations revealed that the appellant was indulging in the acquisition and transfer of foreign exchange as well as receiving and making payments in India in accordance with instructions received from abroad. Resultantly, four Show Cause Notices were issued to the appellant and other co-noticees for alleged violation of Sections 9(1)(b), 9(1)(d), 9(1)(f) (i) and 8(1) FERA, 1973, all dated 14-8-1998, and subsequently when the proceedings were almost complete in the said four Show Cause Notices, the Enforcement Directorate three years thereafter issued a fifth Show Cause Notice dated 8-5-2001 to the appellant alone. 5. By an order dated 9-10-2001, the learned Adjudicating Authority, i.e., the Special Director, FERA, held the appellant guilty for violation of the provisions of the aforesaid Sections of the FERA in all the five Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Adjudicating Authority, FERA. Aggrieved with the aforesaid order of the Appellate Tribunal, the petitioner filed an appeal before this Court bearing Crl. A. No. 120/2008. In the said appeal, this Court by an order dated 29-7-2008, after hearing both the parties, stayed the recovery of the balance amount of Rs. 4,40,000/- (Rupees Four Lakhs Forty Thousand only), during the pendency of the appeal, by passing the following order :- "Crl. M.A. No. 1777/2008 Reply to the stay application has not been filed despite time sought by the respondent. Mr. Vineet Malhotra, counsel appearing for the respondent states that he does not wish to file any reply to the stay application. Mr. Pawan Narang, counsel appearing for the appellant states that penalty of Rs. 20,75,000/- was imposed upon the appellant. Counsel further submits that an amount of Rs. 12,41,360/-, which accrued as interest on the seized amount of Rs. 1,18,00,000/- has already been adjusted by the respondent towards the said penalty. Counsel further submits that an amount of Rs. 2,10,000/- was lying with the Department as total amount of Rs. 1,15,90,000/- was confiscated by the Department under Section 63 of FERA. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying the deposit of the balance penalty amount, the respondents filed the complaint exactly four days after the said order, i.e. on 31-5-2002. The Department at that point of time had full knowledge of the fact that the deposit of the penalty amount had been dispensed with by the Tribunal, that there was no willful default on the part of the petitioner in not complying with the orders of the Adjudicating Authority under FERA, that the petitioner had filed an appeal against the orders of the Adjudicating Authority immediately after the passing of the orders of the Adjudicating Authority dated 9th October, 2001 (being Appeal No. 478/01) and that in the said appeal the Appellate Tribunal had waived the pre-deposit of the balance amount of penalty. The learned counsel urges that the haste shown by the appellant in filing the complaint during the existence of a judicial order passed by the Appellate Authority was in view of the fact that the respondents were in a hurry to file all the complaints before the sunset clause came into operation, for which the last day was 31-5-2002. Thus, even though there was no valid demand pending in favour of the Enforcement Department vesting in them t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the learned counsel for the petitioner that the failure to pay the penalty amount by the petitioner within the time prescribed was neither deliberate nor willful is, therefore, not sans merit, the petitioner having already filed an appeal in the Tribunal with an application for stay seeking waiver of the pre-deposit amount under the proviso to Section 52(2) of the FERA and the Appellate Tribunal in exercise of its powers under Section 52(2) having waived the pre-deposit amount. In the circumstances, in my view, it cannot be said that an offence under Section 57 of the FERA had been committed by the petitioner, so as to make the petitioner liable to the penalty imposed by the said Section. The adjudication order was the subject matter of an appeal and during the pendency of the appeal, the Appellate Tribunal had waived the condition with regard to pre-deposit of the balance penalty amount. After the dismissal of the appeal by the Appellate Tribunal also, the High Court in Crl. A. No. 201/08 had stayed the recovery of the balance penalty amount. Had the adjudication order attained finality, which it had not in view of the appeal pending before the Tribunal, or had the stay g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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