The High Court dismissed in limine a writ petition challenging the Appellate Tribunal's order requiring 10% penalty deposit. The court held the petition lacked merit as the appellant failed to appear or show undue hardship despite the Tribunal's mercy.
Writ petition dismissed; time for pre-deposit extended by two months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.549 OF 2006
Kiritkumar Ramanlal Shah .. Petitioner.
V/s.
Union of India & Others .. Respondents.
Ms.Sonal Gokhale i/b. M/s.Akshar Laws for the
petitioner.
Mr.A.S. Rao for the respondents.
CORAM : R.M. LODHA &
J.P. DEVADHAR, JJ.
DATED : 10TH MARCH, 2006.
P.C. :
Heard Ms.Sonal Gokhale, the learned counsel
for the petitioner.
2. The learned counsel submits that the impugned
order directing the petitioner to deposit 10% of the
amount of penalty as condition precedent for
entertaining the appeal is a non-speaking order and,
therefore, liable to be set aside and the matter
deserves to be remitted back to the Appellate
Tribunal for Foreign Exchange.
3. Section 19 of the Foreign Exchange Management
Act, 1999 to the extent it is relevant for our
purpose reads thus :
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"19. Appeal to Appellate Tribunal. - (1)
Save as provided in sub-section (1), 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 Central
Government :
Provided further that where in any particular
case, the Appellate Tribunal is of the
opinion that the deposit of such penalty
would cause undue hardship to such person,
the Appellate Tribunal may dispense with such
deposit subject to such conditions as it may
deem fit to impose so as to safeguard the
realization of penalty.
(2) --------------
(3) --------------
(4) --------------
(5) --------------
(6) --------------"
4. It would, thus, be seen that any person
aggrieved by an order made by the Adjudicating
authority or the Special Director (Appeals), other
than those referred to in sub-section (1) of section
19, may prefer an appeal to the Appellate Tribunal
for Foreign Exchange. The party preferring the
appeal against the order by the Adjudicating
Authority of the Special Director (Appeals) is
required to deposit the amount of such penalty so
levied with the notified party. However, the
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Appellate Tribunal is empowered to dispense with such
deposit of penalty if it is satisfied that the
deposit of such penalty would cause undue hardship to
the person appealed against the order. While
dispensing with such deposit, the Appellate Tribunal
is competent to impose such conditions as may be
necessary to safeguard realization of penalty.
5. If the appellant felt that deposit of the
penalty would cause undue hardship to him, he ought
to have appeared before the Tribunal and satisfy the
Tribunal about undue hardship. The fact of the
matter is that neither the appellant appeared
personally nor arranged his appearance through the
authorised officer. In these circumstances,
ordinarily, there was no question of dispensation of
pre-deposit. However, the Tribunal showed mercy in
applying the order that it passed in the connected
Appeal No.229 of 1990 in the matter of Pravinkumar
Kothari and, accordingly, directed the appellant to
deposit only 10% of the penalty as condition
precedent for entertaining the appeal. The impugned
order rather shows the mercy extended by the Tribunal
to the appellant despite his non appearance and
despite his not showing any ground of undue hardship.
6. The writ petition has no merit and is
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dismissed in limine.
7. By way of indulgence in the peculiar facts
and circumstances of the case, we extend the time of
pre-deposit for a further period of two months from
today.
(R.M. LODHA, J.)
(J.P. DEVADHAR, J.)
2 issues framed by the court
Whether a writ petition challenging a non-speaking order directing 10% penalty deposit as condition precedent for appeal has merit.
Whether the High Court has power to extend time for pre-deposit in absence of appeal against the order dispensing with deposit.
1 provisions across 1 enactments
Kiritkumar Ramanlal Shah
Union of India
R.M. LODHA
J.P. DEVADHAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court