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TMI Blog2015 (8) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... he order is in the nature of a condition imposed on the Appellants to enable them to proceed and prosecute their Appeals on merits. In other words, the order has been passed on applications seeking waiver of the condition of pre-deposit of a penalty amount and stay of the orders impugned in the Appeals on the file of the Tribunal. 3. The few facts which are required to appreciate the rival contentions and the substantial questions of law are that the Appellants are companies as also individuals. The Board of Control for Cricket in India (BCCI) had established a separate sub-committee/unit known as Indian Premiere League (IPL). That was to hold and oversee operation of a domestic 20 overs cricket competition in India and if permitted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders have been passed. The proceedings culminated in imposition of penalty for unlawful remittance allegedly made and which is computed in terms of the provisions of FEMA. 4. We do not wish to express any opinion insofar as the merits of the matter including the computation of penalty. What we have noted is that aggrieved by the order passed, Appeals were preferred and the Appellate Tribunal was therefore approached with applications seeking waiver of the condition of pre-deposit. The matter was placed before the Appellate Tribunal Foreign Exchange (Appeal Nos. 9-19/2013). The applications were heard extensively. The parties argued as to how the adjudication order dated 30th January, 2013 passed by the Special Director, Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted, but the Hon'ble Chairman found that the members of the special Bench were divided on the aspect that there cannot be a complete or total waiver of the condition of pre-deposit. Meaning thereby, there cannot be an unconditional waiver and stay. Some conditions will have to be imposed including of deposit of money. However, what should be the quantum is the disagreement. 7. He noted the differences in the two orders and then arrived at a conclusion that this is a fit case where each of the Appellants should be directed to deposit 40% and furnish a Bank Guarantee for the remaining 60% amount under the adjudication order. This is the order which is impugned in these batch of Appeals. 8. From the order passed on 24th December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns enable the Tribunal to consider the case of "undue hardship", whether that term is to be given a restricted meaning, namely, financial hardship alone or whether that should take in its import a prima facie case being made out and the point being arguable, a party would suffer unless the condition of pre-deposit is waived totally or partially. In other words, something more than financial hardship or difficulty can also read in this term and the words appearing in the relevant provision. We do not find any such application of mind by the Chairman. Ordinarily, therefore, we would have been required to send the matters back to the Tribunal and for hearing afresh on the applications seeking waiver of the condition of pre-deposit and stay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter which must be gone into by the Tribunal and on merits. However, in the given facts and circumstances, the Appellate Tribunal should have imposed reasonable conditions and exercised its discretion judiciously and not gone by any formula. It should have, even at the prima facie stage, satisfied itself as to whether there is any breach or violation of law. If that breach and violation is serious enough and requiring imposition of penalty, whether there is any discretion in the matter of imposition of penalty. Further, the settled principles enabling imposition of penalty have to be read into the subject legal provisions or they are not permitted to be so read. When these are vital and crucial questions raised, then, the Tribunal shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Appellant as well as the Appeals of other Appellants, on merits and in accordance with law. (ii) The Tribunal shall dispose of the Appeals without being influenced by any prima facie conclusions or tentative observations either in the orders passed by the members constituting the Special Bench or by the Chairman. (iii) The Appeals should be disposed of after hearing both sides and equally uninfluenced by any tentative and prima facie observations in the present order passed by this Court. (iv) We clarify that our observations and findings are tentative and prima facie and shall not influence the final outcome of the Appeals. (v) We further clarify that all contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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