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TMI Blog2023 (10) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has, in waiving 60% of the penalty, and directing deposit of only 40%, taken note of all contentions of the Appellant, including the hardship projected. In fine, a balance has been struck and the Appellant directed to remit only 40% of the penalty, bearing in mind the interest of the State as well. Taking a cue from the order in the case of Monotosh Saha [ 2008 (8) TMI 9 - SUPREME COURT] we made a similar offer to the appellant to remit at least a portion of the amount in order that we may consider directing the Tribunal to hear the appeal. Learned counsel, upon instructions, is categoric that no amount of the penalty can be remitted, as the appellant has absolutely no available resources. In Nimesh Suchde Prop.Siddharth P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above facts that the Bench concluded that the dismissal of request of dispensation of pre deposit had not been decided in proper light by the Tribunal. The facts of this case are not analogous to the case of Siddharth Polymers and hence do not advance the case of the Appellant. We do not find any extenuating circumstances warranting interference in the discretionary order passed by the Tribunal. In fact, the Tribunal has itself waived 60% of the penalty based on the plea of financial stringency put forth by the petitioner. We find very little justification to interfere in the discretion exercised by the Tribunal as it not shown to be perverse in any way. The order of the Tribunal is confirmed and this Civil Miscellaneous Appeal is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration towards exports made during the period July to November 1999. 4. A second show cause notice was issued under the provisions of Section 8 of Foreign Exchange Management Act, 1999 (in short 'FEMA') read with relevant Regulations for failure to realize and take reasonable steps towards realizing export proceeds amounting to US $ 18,17,346/- for exports made during the period from 01.12.1999 to 13.04.2000 and other connected allegations. 5. The show cause notices had been consequential to information received with regard to exports made to M/s.Nithan Trading Company and M/s.Vasanna Impex in Colombo. In the statements recorded by the authorities, the appellant had admitted the dues as receivable from the purchasers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that such deposit would cause undue hardship to the appellant. 10. Accordingly, the appellant had filed a Miscellaneous Application before the Tribunal on 25.08.2003 pleading undue hardship. The reasons spelt out in the condonation application are three fold (i) that it was facing proceedings by the Tamil Nadu Industrial Investment Corporation Limited for recovery of a sum of Rs. 1,15,83,803.25 for a loan availed for construction of mechanised sailing vessel (ii) appellant did not own any other immovable asset or any other asset, for that matter, to enable the deposit of the penalty and (iii) that it was in appeal before the Srilankan Supreme Court challenging the order passed by the Provincial Commercial High Court, Colombo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge was to an order passed by the Calcutta High Court rejecting an order passed by the Tribunal, directing pre-deposit. The Court refers to its judgments in Siliguri Municipality Vs. Amalendu Das (1984 2 SCC 436), Samarias Trading Co.(P) Ltd.., Vs. S.Samuel (1984 4 SCC 666) and CCE Vs.Dunlop India Ltd (1985 1 SCC 260) wherein the principles for grant of stay have been discussed. 15. The Court also refers to the judgments in S.Vasudeva Vs. State of Karnataka ( 1993 3 SCC 467 ) and Benara Valves Ltd., Vs. CCF (2006 13 SCC 347) for the manner in which a prayer for undue hardship must be understood and interpreted. 16. That appellant had, in compliance with the order of the Hon'ble Supreme Court pending SLP, remitted an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght waiver of pre deposit and that request had been dismissed directing deposit within 30 days, premised upon the finding that the goods imported, were higher in value than disclosed. A Single Judge of the Delhi High Court confirmed the order of the Tribunal as against which, an appeal had been filed. 21. The Division Bench considered the plea of waiver in light of Sections 8(3) and 8(4) of the FERA, that imposed restrictions on dealing with foreign exchange. The Adjudicating Officer while invoking Sections 8(3) and 8(4) of the FERA was expected to examine the matter independently and arrive at a conclusion in the matter. 22. In that case, the Officer had merely relied on the order passed by the Customs Authority which, in turn, had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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