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TMI Blog2009 (5) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... it lies in the appellant’s favour and insistence on the deposit of the same at this stage would cause undue hardship to the appellant. Accordingly,the order of the Appellate Tribunal dated 7-11-2008 set aside and the impugned order of the learned Single Judge dated 10-2-2009 and grant waiver of pre-deposit of penalty amount as a pre-condition for hearing of the appeal of the appellant under section 19(1) of FEMA. Matter remanded back . - LPA 157 OF 2009 AND CM NOS. 5272 AND 5274 OF 2009 - - - Dated:- 25-5-2009 - CHIEF JUSTICE AND NEERAJ KISHAN KAUL, J. R.K. Handoo and Manish Shukla for the Appellant. Vineet Malhotra for the Respondent. ORDER 1. The appellant (original petitioner in the writ petition) in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ). 4. To be entitled to the benefit of the proviso to section 19(1) of FEMA, the applicant must make out a case that the deposit of the penalty would cause undue hardship to such person and in such circumstances, the Appellate Tribunal may dispense with such deposit subject to special conditions as it may deem fit to impose so as to safeguard the realization of penalty. 5. The Supreme Court in Monotash Saha v. Special Director, Enforcement Directorate 2008 (12) SCC 359 1 observed that "undue hardship" is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of the funds lying to the credit of those accounts and the shares held by her father. The fact that Ms. Priya Shah was a co-signatory to the bank accounts and also documents in respect of holding the shares and was beneficiary to the said assets are proved by records and admitted by her in her statement. When the noticee was cited as beneficiary to the accounts and the shares in the banks records, I find that the question as to whether Shri Satnam Shah had left any will indicating as to whom the assets owned by him would be given after his death is not relevant at all. Had the noticee produced any such will showing that the funds lying in the subject bank accounts and the shares are assigned to another person, no doubt, the story ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o material has been placed before us to establish that the appellant had actually operated or was operating the account, we are of the opinion that this is a fit case for waiver of deposit of penalty as a pre-condition for hearing the appeal under section 19 sub-clause (1) of FEMA. 8. As held by the Delhi High Court in Ess Ess Metals Enterprises v. CEGAT 2003 (158) ELT 810, that while considering an application for dispensing with the deposit, the appellate authority is not required to embark upon detailed enquiry to find out whether the stand of the appellant is on a strong footing or not. What is required to be considered at that juncture is as to whether the appellant has made out a prima facie case in his favour; the balance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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