Mohammed Omar vs The Chairperson, The Appellate Tribunal for Foreign Exchange and The Deputy Director, Directorate of Enforcement, Ministry of Finance

Vinod K. Sharma, J.—The Petitioner has approached this Court with the prayer for issuance of writ in the nature of Certiorari for quashing the impugned order, passed by the Appellate Tribunal for Foreign Exchange, Janpath Bhavan, 4th Floor, ''B'' Wing, Janpath, New Delhi - 110 001.

The impugned order reads as under:

Shri A.R. Shamsudeen, Advocate filed written submissions and seeks to argue this appeal on merits but application for dispensation of predeposit of penalty is still pending. Hence, we proceed to take up the application for dispensation of pre-deposit of penalty. According to learned Counsel, the Appellant is having a license for making man power arrangement and sending them to Gulf countries. However, the Appellant neither acquired foreign currency in an unauthorized manner nor in lieu of payment acquired foreign currency outside the country. Despite above arguments, the factual position is that US 215 and Saudi Riyals 4000 along with Rs. 51,900 is recovered from the Appellant. Looking towards this situation, it is difficult to agree with the counsel that Appellant is totally innocent who has also made admissional statement which he retracted later.

Looking towards above situation, we partly allow application for dispensation of pre-deposit of penalty and direct the Appellant to make pre-deposit of Rs. 1 lakh within 30 days from today failing which this application will be dismissed on this ground alone. The seized currency of Rs. 51,900/- is lying with the Enforcement Directorate as per statement and is not confiscated. Let this seized currency may lie still the final disposal of this appeal. This appeal is fixed for hearing on 17th December, 2008.

It is the contention of learned Counsel for the Petitioner that impugned order, on the face of it, is arbitrary, as it does not take note of the fact that a sum of SR 4,000 (Saudi Rials Four Thousand only), seized from the Petitioner, were ordered to be refunded to the Petitioner, which have not so far been withdrawn by the Petitioner. The reason stated for non withdrawal of amount is to avoid dismissal of appeal on the ground of acceptance of order.

This contention is misconceived, as it is always open to the aggrieved party to challenge the impugned part of order, while accepting other part, which is in the favour of party concerned.

Other contention of learned Counsel for the Petitioner was that in the affidavit filed by the Petitioner, a specific stand was taken that a sum of SR 4,000/- lying with the authorities could be used for set off of claim, if any, which may, ultimately, be found against the Petitioner. In view of specific stand, it was not open to the appellate authority to direct deposit of Rs. 1 lakh.

This contention of the learned Counsel for the Petitioner again deserves to be noticed to be rejected. The reading of the impugned order would show that the Court has taken note of SR 4,000/- recovered from the Petitioner, while directing deposit of Rs. 1 lakh. Under the law, the appellate authority has discretion to dispense with the deposit or part pre-deposit, the discretion exercised cannot be challenged merely on the ground that some amount of the Petitioner is lying with the authorities to the credit of the party, filing an appeal.

It may also be noticed that total penalty imposed on the Petitioner is Rs. 2,52,000/-, whereas, SR 4,000/- do not correspond to penalty imposed, therefore, in the event of dismissal of appeal, the amount of penalty cannot be set off as claimed.

It was next contended by the learned Counsel for the Petitioner that the Petitioner has very good case on merit, as the impugned order is in violation of principles of natural justice and also that the order has not dealt with the contentions raised by the Petitioner.

This plea again deserves to be noticed to be rejected, as this Court cannot go into merit of the case, pending before the appellate authority. The impugned order is passed u/s 54 of FERA Act, dealing with predeposit before the appeal is entertained. The exercise of discretion by the appellate authority, cannot be the subject matter of challenge, unless order passed is patently illegal, arbitrary or order suffers from lack of jurisdiction. This is not the case.

For the reasons stated above, finding no merit in this petition, the writ petition is ordered to be dismissed. No costs. Consequently, connected miscellaneous petition is closed.