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TMI Blog2005 (2) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to be given to the expression Undue hardship, as it appears in Provisio to Section 19 of the FEMA. The said Section is reproduced for facility of reference: 19. Appeal to Appellate Tribunal--(1) Save as provided in Sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in Sub-section (1) of Section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal: 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 Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be shown in my opinion that the particular burden to the applicant to have to observe or perform the requirement is out of proportion to the nature of requirement itself and the benefit which the applicant would derive from compliance with it. (Re Walsh (1944) VLR 147) Again in Liberian Shipping Corpn Pegorus v. Kingsons (1967) 2 KB 86 it is given as But even if a claimant has been at fault himself, it is an undue hardship, if the consequences are out of proportion to his fault. 5. It would be seen from the foregoing that the expression undue hardship would include within its ambit cases where the burden sought to be imposed is disproportionate to the fault or guilt. This assumes relevance in the context of considering waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Co-Op Milk P. U. Ltd. v. Union of India, (Civil Appeal No. 2668/2003 decided on 31st March, 2003). The Court while dealing with waiver of pre-deposit under Provisio of Section 35 of the Central Excise Act, 1944 noted as under: By the impugned order, the appellants have been directed to deposit an amount of ₹ 30 lakhs by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The Appellate Authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty on Sh. Gurucharan Singh Sethi and Smit Surinder Kaur, who had acquired foreign exchange to the extent US $ 2,22,895 and pound sterling 3,49,920 equivalent to Indian ₹ 3 crores. The said Sh. Gurucharan Singh Sethi and Smit Surinder Kaur had deposited the amounts in NRI Account, maintained with the petitioner--Bank of Baroda and Punjab National Bank, without obtaining any general or special permission. Under the Rules and Guidelines, an account holder could deposit US $ 10,000 at any one point of time, without any special permission or declaration. The Adjudication Officer held the deposits made to be in contravention of Section 8 of FERA and imposed a penalty of ₹ 30 lacs on Sh. Gurucharan Singh Sethi and Smit Surinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, had the noticee banks exercised due caution, the repeated and frequent deposits of foreign currency involving amounts in such manner that the same did not exceed US $ 10,000 or its equivalent could have been detected and the transactions involving violations of the provisions of the FERA, 1973 could have been prevented. 9. The impugned order goes on to hold further, the Bank should have exercised due diligence and caution while accepting such deposits. Both Bank of Baroda Punjab National Bank, noticee Nos. 2 3 had not exercised caution diligence and failed to observe the procedures which were expected from them. Accordingly, I find that the charges in the SCN, against Bank of Baroda Punjab National Bank also are proved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Petitioner Bank and its officials can reasonably urge that as long as they are conforming and not violating the overall limit of accepting deposits, which can be made, without any declaration, they could not be held to be in contravention of statutory provisions and least of all accused of abetting an offence under Section 8(1) read with Section 64(2) and also read with Sections 6(4), 6(5), 49, 73(3) of FERA, 1973. Moreover, it also raises the issue, whether by mere negligence there can be abetment of an offence? Petitioner itself has a reasonably good prima facie case, requiring consideration. However, the factors as pointed out by the Special Director regarding the failure or omission to be diligent, the frequency and dates of transact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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