Ashok Narain vs Director, Enforcement Directorate

Sanjiv Khanna, J.—This writ petition by Mr. Ashok Narain is directed the order dated 14-10-2009, passed by the Appellate Tribunal for Foreign Exchange dismissing his application for waiver of pre-deposit of penalty amount of Rs. 5,00,000 imposed under the provision of Foreign Exchange Regulation Act, 1973.

The said penalty was imposed vide order dated 7-3-1991 and relates to the show-cause notice dated 10-5-1982, issued for acquiring foreign exchange in contravention of the said Act. During the course of hearing, it is pointed out that value of the said foreign exchanges, as per the exchange rates prevalent in 1980-82, would be about Rs. 1,50,000. Counsel for the petitioner states that the figures mentioned in the show-cause notice and relied upon in the adjudicating order are based only on the statements of the petitioner and there is no corroborative evidence in support thereof.

It is admitted that the show-cause notice was issued in 1982 and the adjudication order was passed on 7-3-1991. The allegation against the petitioner is that he was working as an employee of the British Airways and had made 12 visits to abroad, but there were hardly any withdrawals in foreign exchange for the said visits. It is alleged that the petitioner used to go abroad and make purchases in bulk and bring them to India.

The petitioner had filed an appeal against the adjudication order in 1991. The said appeal was not taken up for hearing till 14-10-2009. On the said date, the application of the petitioner for waiver of pre-deposit was dismissed with a direction that the petitioner should deposit the entire penalty amount of Rs. 5,00,000.

The petitioner has filed an affidavit stating, inter alia, that he is not assessed to Income Tax and is residing in one bed room set in Saket, Malviya Nagar. It is further stated by the petitioner in the affidavit that his wife has expired and he does not own any other property and his son is working in Mumbai as Delivery Leader with Bank of America and resides in a rented accommodation. Along with the said affidavit, the petitioner has filed copy of telephone bill and electricity bill. As per telephone bill, his monthly bill is about Rs. 350. The electricity bill reveals that the petitioner had made payments of Rs. 4,570 and Rs. 3,466 towards electricity charges for the bill-periods June-July and August-October, 2009 respectively.

Keeping in view the aforesaid aspects and facts in mind, it is directed that the petitioner will deposit a sum of Rs. 1,00,000 within a period of one month with the Enforcement Directorate and shall furnish security of the immovable property, i.e., of the premises No. BK-27-D, Saket, Malviya Nagar, New Delhi, to the Enforcement Directorate. He shall also file an undertaking with the Enforcement Directorate that he shall not encumber, transfer or alienate the said immovable property. Security and undertaking will be submitted within four weeks with the respondent, Enforcement Directorate. The impugned order dated 14-10-2009 is modified to the extent indicated above.

The writ petition is disposed of; Observations made in this order are for the purpose of disposing of the writ petition and will not influence the Appellate Tribunal when it decides the appeal on merits.

Dasti to the counsel for the parties.