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TMI Blog2009 (1) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... and Chandaya P. Karnire against Show-Cause Notice No. T-4/74-B/SDE/JMJ/92 (SCN II), dated 28-7-1992 for contravention of section 8(3) read with sections 8(4) and 64(2) of FER Act, 1973. (b) Rs. 5 lakhs each against appellant Rajesh Punambhai Patel and Niyogi H. Patel and Rs. 50,000 against appellant Punambhai C. Patel and Rs. 40,000 against appellant Atmesh K. Patel against Show-Cause Notice No. T-4/74-B/SDE/JMJ/92 (SCN III), dated 28-7-1992 for contravention of section 9(1)(b) of FER Act, 1973. 3. Despite notice, the appellants are neither present nor represented but appellants have filed application for modification of order dated 3-11-2008 whereby the appellants are directed to make pre-deposit of their penalties in these appeals. Looki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation Act, 1973. Moreover, the grounds of review are well-settled and the appellant has not brought out sufficient grounds which can entitle them to relief under either of the three well-settled grounds of review. Further, he controverted the arguments advanced by opposite side stating that the arguments on merit can neither be heard nor raised till admission of these appeals by making pre-deposit of penalty as per Tribunal's order dated 3-11-2008. 7. It is well-settled that a right to appeal or revision or review is a creature of statute. These remedies are neither arose out of legal rights nor from fundamental rights. The Foreign Exchange Regulation Act, 1973, created a right to appeal under section 52(2) where pre-condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a substantive right to review in FER Act, 1973. The right to review is not a procedural right but the right to review or appeal or revision is always considered as a substantive right (refer Garikapatti Veeraya v. N. Subbiah Choudhury AIR 1957 SC 540). Therefore, the remedy under Foreign Exchange Regulation Act, 1973 available to the appellant can only be availed of. It is not correct to argue as contended that right to review is a procedural right, hence, should be granted under FEM Act, 1999, under which this Tribunal is constituted. 9. This Tribunal is allowed a power to correct clerical errors under section 65 of Foreign Exchange Regulation Act, 1973. Also, modification of the contents of any order already passed is not permissible unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soned order is a nullity is difficult to be accepted. Till the time the former order stands and is not remedied by challenge before Appellate Court, the former order cannot be revisited either for supplying better/more reasons or for changing the contents of former order. Therefore, this separate application for review or modification has to be rejected and dismissed. 11. In U.P.S.R.T.C. v. Imtiaz Hussain AIR 2006 SC 649 Hon'ble Supreme Court held as follows : The basis of the provision under section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e., an act of court shall prejudice no man. The maxim 'is founded upon justice and good sense and affords a safe and certain guide for the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. (p. 1373) 13. An error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. 15. The statutory scheme contained in section 52(2) creates an obligation on the appellant to make pre-deposit of penalty along with filing of the appeal unless this Tribunal permits dispensation with any conditions deemed fit on the grounds of 'undue hardship'. The legally well-settled grounds of undue hardship are (1) Order is ex facie bad or prima facie good case (2) financial disability as held in Benara Valves Ltd. v. CCE 2006 (12) Scale 15. 16. As the language of Second Proviso to section 52(2) is plain and unambiguous, this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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