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TMI Blog2025 (4) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... N.Ramesh Special Public Prosecutor - for Enforcement Directorate COMMON JUDGMENT R. SURESH KUMAR J. Since the issue involved in all the four appeals is inextricably connected with each other, all these appeals were heard together and are disposed of by this common judgment. 2. As against the order of the adjudicating authority under the Foreign Exchange Management Act, 1999 (In short 'FEMA'), appeals had been filed before the appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) at New Delhi, where, the appellants had sought for waiver of pre-deposit of penalty. 3. For better understanding of the case, the facts in C.M.A.No.2802 of 2024 is traversed herein. The adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, further opportunity was mentioned to be given, however such an opportunity had not been given and without giving any such opportunity, final orders were passed by the adjudicating authority. Therefore he would contend that, had there been a full opportunity given to the appellants, the case would have been projected in proper perspective and there could not have been any room for losing the case before the adjudicating authority. Hence, it is the ultimate contention of the learned counsel for the appellants that if those cases are heard on merits by the appellate Tribunal, certainly the cases would go in favour of the appellants alone. Therefore, the discretion as has been provided under the second proviso to Section 19(1) could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ataka and Ors. that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word "undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant." 8. Relying up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration the facts and circumstances of the case, by using the discretion the Tribunal had already exercised its power by reducing the penalty amount only to 20% instead of 100%. Therefore, such a discretion since has already been exercised by the Tribunal to the maximum extent, it cannot be found fault with and absolutely there is no scope for interference in the order impugned, he contended. 11. We have heard the submissions made by the learned counsel for both sides and have perused the materials placed on record. 12. The only question to be considered here is that, whether the Tribunal has exercised its discretion in the context of second proviso to Section 19(1) of the Act. The language used in the first proviso to Section 19(1) re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on the basis of undue hardship, which must be in the opinion of the Tribunal. In the order impugned here, it has been clearly stated that, considering the facts and circumstances of the case the Tribunal, by exercising its discretion has reduced the pre-deposit of penalty to only 20% ie., 1/5th of the penalty amount. That itself is a great relief that has been given by way of exercise of discretion under the second proviso to Section 19(1) of the Act. 16. It is further to be noted that, once the legislature fixes the discretion to any authority, it is to the satisfaction of that authority it should exercise such discretion. Moreover, the words used in the second proviso to Section 19(1) also states that 'the appellate Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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