JUDGMENT
Vikramajit Sen, J.
1. The Order in Appeal imposes a penalty of Rs.30 lacs on Messrs Nitex Overseas and a personal penalty of Rs.5 lacs on the two partners of the firm, namely, Smt.Nilofer Singh and Shri Harmanjeet Singh. Learned counsel for the Petitioner relies on Notification No.SO 388 (E) dated 23.3.2004 which mandates that only a Division Bench shall hear Appeals where the amount of the penalty imposed exceeds Rs.5 lacs and all other cases shall be heard by a Single Member Bench. My attention has also been drawn to Notification No.SO 72 (E) dated 20.4.2002 by learned counsel for the Respondent. In the first place, if there is any inconsistency between the two Notifications, it is the latter which shall prevail. However, both can be construed in a harmonious manner, viz., by holding that wherever the amount of penalty exceeds Rs.5 lacs, it would partake of the character of a substantial question of law and/or mixed questions of law and facts.
2. The Order that has been impugned pertains to exemption of pre- deposit. So far as the firm Nitex Overseas is concerned, this Order could have been passed only by a Division Bench since the penalty is in excess of Rs. 5 lacs. The impugned Order is accordingly set aside on this short ground so far as Nitex Overseas is concerned. 3. Inasmuch as a personal penalty of a sum not exceeding Rs.5 lacs, has been imposed on the other Petitioners, namely, Smt. Nilofer Singh and Shri Harmanjeet Singh, the Single Bench indubitably possessed jurisdiction to dispose of the application for pre-deposit. The Order reads as follows: ?Appellate Tribunal for Foreign Exchange Janpath Bhawan, 4th Floor, B Wing, New Delhi-11001 Appeal No. : 706, 707,708/2004 Date : 20.9.2004 Appellant : M/s Nitex Overseas and Ors. Present : None … for the appellant Shri T.K.Gadoo, DLA … for the respondent The appellant in appeal No.707/2004 has filed three applications for adjournment on the reasons that some close relative has expired. This application is dated 16.9.2004 The contents of the application do not stop the appellants to appear and argue their matter. Hence, application for dispensation of pre-deposit is taken up in absence of the appellants. After hearing Shri T.K.Gadoo and going through the records the appellants are directed to deposit 50% of the amount of penalty within 60 days from the receipt of this order failing which these appeals are liable to be dismissed on this ground alone. (O.P.NAHAR) Acting Chairperson Appellant Appellant’s Advocate Director, Enforcement Directorate, New Delhi Deputy Director, Enforcement Directorate Dy. Legal Adviser, Enforcement Directorate, New Delhi.?
4. In the first place, the reasons for declining to grant the adjournment prayed for should have been given. In Mehsana Dist. Co-op Milk P.U. Ltd. vs. Union of India, , it has been laid down that while dealing with pre-deposit with exemption from pre-deposit the Tribunal must address the existence of a prima facie case and also financial hardship. Whilst the acting Chairperson possesses powers to dispose of the application, in the circumstances spelt out above, even in respect of Smt. Nilofer Singh and Shri Harmanjeet Singh, the impugned Order is set aside and the proceedings are remanded to the Appellate Tribunal for Foreign Exchange for fresh adjudication on the said applications.
5. The Writ Petitions stand disposed of in these terms.