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TMI Blog2019 (6) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded by the appellants and their case that they are unable to realize export production in spite of their diligent efforts, we are of the considered view that the appellants have made out a prima facie case. However, this observation is made only for the purpose of imposing a condition on the appellants, so that the appeals before the Tribunal can be heard and disposed of on merits. Accordingly, CMA disposed of by slightly modifying the common order passed by the Tribunal by directing the appellants to deposit with the first respondent namely the Special Director, Enforcement Directorate, Government of India, 50% each of the penalty amounts imposed individually and furnish a bond for the balance 50% each and keep the bond alive till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on the applications filed by the firm and the partner of the firm seeking to stay and waiver of pre-deposit in their challenge to the adjudication orders dated 28-5-2010 passed by the Special Director, Enforcement Directorate. 3. CMA No. 1665 of 2016 was filed before this Court on 5-8-2016 questioning the correctness of the order dated 20-11-2014. Records disclose that a Division Bench of this Court in CMP No. 12314 of 2016 in CMA SR No. 5224 of 2015, by order dated 4-8-2016, condoned the delay of 471 days in representing an appeal, however, subject to a condition and the appellant therein complied with the conditional order passed by the Division Bench vide order dated 4-8-2016, by which, he was directed to pay a sum of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 are pending before this Court along with connected stay applications and no final orders have been passed in the same ? And 3. Has the Tribunal, as a last Fact Finding Body, overlooked the cause of substantial justice and acted on what could be termed as technicalities in dismissing the appeals for non-prosecution under the impugned order, as it is submitted that cause of substantial justice should not suffer on account of procedure and technicalities, which are merely handmade of justice dispensation and not justice in its substantial terms in themselves? 5. The challenge to the conditional order dated 20-11-2014 passed by the Tribunal is on the ground that the appellant firm as well as the partner are undergoing se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants would submit that pendency of the first set of appeals before this Court challenging the conditional order passed by the Tribunal dated 20-11-2014 was brought to the notice of the Tribunal. According to him, yet the Tribunal rejected the appeals. 9. We would be first required to decide as to whether the Tribunal erred in dismissing the appeals for non-prosecution. The appeals to the Tribunal were filed under Section 19 of the Foreign Exchange Management Act, 1999 (FEMA). The procedure and the powers of the Tribunal are prescribed under Section 28 of the FEMA. In exercise of the powers conferred under Section 46 read with Sections 16(1), 17(3) and 19(2) of the FEMA, the relevant Rules were framed for regulating the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no manner of doubt that the appeal filed before the Appellate Tribunal has got to be disposed of on merits and not for default of appearance of the appellant, that the Appellate Tribunal has to decide the issue ex parte, but dismissing the appeal for non-prosecution does not seem to be legally or even on equity grounds correct. The Division Bench relied upon the decision of the Hon ble Supreme Court in the case of J.K. Synthetics Limited v. CCE [reported in 1996 (86) E.L.T. 472]. 13. In the decision in the case of Balaji Steel Re-Rolling Mills v. CE [reported in 2014 (310) E.L.T. 209], the Hon ble Supreme Court pointed out that to meet the ends of justice, the Tribunal has power to restore the appeal in terms of Rule 41 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d disposed of on merits. 17. Accordingly, CMA Nos. 1665 and 1948 of 2016 are disposed of by slightly modifying the common order passed by the Tribunal by directing the appellants to deposit with the first respondent namely the Special Director, Enforcement Directorate, Government of India, 50% each of the penalty amounts imposed individually and furnish a bond for the balance 50% each and keep the bond alive till the appeals are heard and disposed of on merits by the Tribunal. No costs. Consequently, the connected CMPs are closed. 18. For the reasons set out by us in the preceding paragraphs, CMA Nos. 2505 and 2506 of 2018 are allowed, the common order passed by the Tribunal dismissing the appeals for non-prosecution dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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