{"id":157985,"date":"2010-03-25T00:00:00","date_gmt":"2010-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-unknown-on-25-march-2010"},"modified":"2019-04-13T11:57:44","modified_gmt":"2019-04-13T06:27:44","slug":"jayesh-vs-unknown-on-25-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-unknown-on-25-march-2010","title":{"rendered":"Jayesh vs Unknown on 25 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayesh vs Unknown on 25 March, 2010<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nTAXAP\/1946\/2008\t 8\/ 8\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nTAX\nAPPEAL No. 1946 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR. JUSTICE D.A.MEHTA  \nHONOURABLE\nMS. JUSTICE H.N.DEVANI\n \n \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n \n\nJAYESH\nNATWARLAL SHAH - Appellant(s)\n \n\nVersus\n \n\nTHE\nDEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE (FEMA) & 1 - Opponent(s)\n \n\n========================================= \nAppearance\n: \nMR NM\nKAPADIA for\nAppellant(s) : 1, \nRULE SERVED BY DS for Opponent(s) : 1, \nMR PS\nCHAMPANERI, ASSTT. SOLICITOR GENERAL OF INDIA for Opponent(s) :\n1, \nRULE NOT RECD BACK for Opponent(s) :\n2, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR. JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\n                              and\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS. JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 25\/03\/2010 \n\n \n\n \n \n\n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
                                       (Per :\n<\/p>\n
HONOURABLE MS.JUSTICE H.N.DEVANI)<\/p>\n
1.\t\tIn
\nthis appeal under section 35 of the Foreign Exchange Management Act,
\n1999, (the Act) the appellant has challenged the order dated 26th
\nJuly, 2007 made by the Appellate Tribunal for Foreign Exchange (the
\nTribunal) whereby the appeal has been dismissed.\n<\/p>\n
2.\t\tThe
\nfacts stated briefly are that by an order dated 26.10.1998 made by
\nthe Special Director, Enforcement  Directorate, Mumbai, the appellant
\nwas found guilty of the contravention of the provisions of the
\nForeign Exchange Regulation Act (FERA) and penalty of Rs.7,50,0000\/-
\nwas imposed on him and Indian currency of Rs.7,35,0000\/- came to  be
\nconfiscated.  Being aggrieved the appellant had preferred an appeal
\nbefore the Tribunal being Appeal No.98 of 1999. Vide order dated 06th
\nJanuary, 2006, the Tribunal after hearing the learned advocate for
\nthe appellant and after considering the facts and evidence and
\ncircumstances of the case found that there was no justification for
\nwaiver of pre-deposit of penalty and accordingly directed the
\nappellant to pre-deposit the full amount of penalty within 30 days
\nfrom the date of the said order failing which the appeal would be
\ndismissed on the said ground alone.  The appeals were fixed for
\nhearing on 17th February, 2006.\n<\/p>\n
3.\t\tAgainst
\nthe said order of the Tribunal, the appellant preferred a writ
\npetition before this Court being Special Civil Application No.13762
\nof 2006.  Vide order dated 13th March, 2007, the appellant
\nwas permitted to withdraw the petition with liberty to file a review
\napplication before the Tribunal to reconsider the aspect of hardship
\nand to recall and review the order directing pre-deposit for hearing
\nof the appeal. The appeal was thereafter taken up for hearing on 26th
\nJuly, 2007. On that date, the learned advocate for the appellant
\nprayed for time to enable him to file an application for review in
\nterms of the order dated 13th March, 2007 passed by this
\nCourt. The Tribunal vide the impugned order turned down the request
\nfor adjournment and dismissed the appeal as the appellant had failed
\nto make pre-deposit of penalty in compliance with the order dated
\n06th January, 2006 passed by the Tribunal.\n<\/p>\n
4.\t\tMr.\n<\/p>\n
N. M. Kapadia, learned advocate for the appellant has invited the
\nattention of the Court to the averments made in the memo of appeal to
\nsubmit that the appellant’s advocate Shri Madhubhai Patel was aged
\nabout 78 years and had not been keeping good health for the last 2-3
\nyears and that when the matter was fixed for hearing on 06th
\nJanuary, 2006, the learned advocate was not in a position to attend
\nhearing and had deputed another advocate to argue the matter.  It is
\nsubmitted that the appellant had entrusted the filing of review
\napplication to the said advocate and that on 26th July,
\n2007, Mr. M. Venkataraman had appeared on behalf of Mr. Madhubhai
\nPatel and prayed for a short time for filing an application for
\nrecall.  It is submitted that even in the absence of any application
\nfor recall, in view of the order passed by this Court, it was
\nincumbent upon the Tribunal to call upon the advocate to argue the
\nmatter for recall of the order. It is submitted that on account of
\ndefault on the part of the learned advocate for the appellant, the
\nappellant should not be penalised and as such, the impugned order
\npassed by the Tribunal be set aside and the appellant be permitted to
\nfile a review application before the Tribunal.\n<\/p>\n
5.\t\tOn
\nthe other hand Mr. P. S. Champaneri, learned Assistant Solicitor
\nGeneral, has invited the attention of the Court to the averments made
\nin the memo of appeal as well as to the impugned order of the
\nTribunal. It is submitted that no explanation is coming forth for not
\nfiling the review application within a reasonable period after the
\norder dated 13th March, 2007 made by this Court. It is
\nsubmitted that the appellant having failed to make pre-deposit in
\ncompliance with the order made by the Tribunal, the Tribunal was
\nfully justified in dismissing the appeal.\n<\/p>\n
6.\t\tAs
\ncan be seen from the impugned order of the Tribunal, the Tribunal had
\nfound it difficult to agree with the request for adjournment made by
\nthe learned advocate for the appellant in view of the fact that more
\nthan three months had already passed since the date of the order
\npassed by this Court permitting the appellant to withdraw the
\npetition challenging the order of pre-deposit to enable the appellant
\nto file application for review\/recall of the said order. It is in
\nthese circumstances, that the Tribunal had rejected the request for
\nadjournment to enable the learned advocate for the appellant to file
\na review application.  The Tribunal has observed that section 52(2)
\nof the Act creates an obligation on the appellant to make pre-deposit
\nof penalty unless the Tribunal permits dispensation with any
\nconditions deemed fit on the grounds of undue hardship. That though
\nthere was no stay against the order directing pre-deposit the
\nappellant had failed to make pre-deposit in compliance with the order
\ndated 06th January, 2006 made by the Tribunal. The
\nTribunal was of the view that the appellant was aware that as a
\nconsequence of non-deposit of the penalty his appeal would be
\ndismissed on that ground alone, and accordingly, dismissed the appeal
\nas the appellant had failed to make pre-deposit of the penalty in
\ncompliance with the order dated 06th January, 2006.\n<\/p>\n
7.\t\tSection
\n52 of the FERA provides for appeal to the Appellate Board.
\nSub-section (2) thereof lays down that any person aggrieved by an
\norder of the adjudicating officer made under section 51 may, on
\npayment of such fee as may be prescribed and after depositing the sum
\nimposed by way of penalty under section 50 and within forty-five days
\nfrom such date on which the order is served on the person committing
\nthe contravention, prefer an appeal to the Appellate Board. The
\nsecond proviso to sub-section (2) provides that where the Appellate
\nBoard is of the opinion that the deposit to be made will cause undue
\nhardship to the appellant, it may, in its own discretion, dispense
\nwith such a deposit either unconditionally or subject to such
\nconditions as it may deem fit. Thus depositing the sum imposed by way
\nof penalty under section 50 is a condition precedent for preferring
\nan appeal. However, it is permissible for the Appellate Board to
\ndispense with such a deposit if it is of the opinion that the deposit
\nto be made will cause undue hardship to the appellant. In the facts
\nof the present case, the Tribunal vide order dated 6th
\nJanuary, 2006 had found that there was no justification for waiver of
\npre-deposit. The appellant had withdrawn the petition filed by him
\nchallenging the said order with a view to file application for
\nreview\/recall of the earlier order. Despite considerable time having
\nelapsed since the date of the passing of the order of this Court, no
\napplication for review\/recall was made by the appellant. In the
\ncircumstances, if the appellant was desirous of pursuing the appeal,
\nit was incumbent upon him to deposit the penalty amount. However, the
\nappellant had failed to do so resulting in the Tribunal dismissing
\nhis appeal for failure to deposit the amount of penalty. The sole
\nground pleaded before this Court is that the review application was
\nnot filed in time on account of default on the part of the learned
\nadvocate of the appellant and as such the appellant should not be
\npenalized. In this regard it may be pertinent to note that from the
\naverments made in the memo of appeal, no explanation worth the name
\nis coming forth as to why no application for review was made since
\nthe order dated 13.03.2007 made by this Court permitting the
\napplicant to withdraw the petition with a view to file application
\nfor review\/recall. The only reference made in the appeal memo is in
\nrelation to the absence of the learned advocate on 06.01.2006 when
\nthe learned advocate could not remain present and had deputed some
\nother advocate on his behalf. The appeal memo is absolutely silent as
\nregards the application for review being entrusted to the said
\nlearned advocate and as to when it was so entrusted. The only
\naverment made is that since the learned advocate had to prepare and
\nfile an application for recall of the order, Mr. Venkatraman on
\nbehalf of Mr. Madhubhai Patel had appeared before the Tribunal on
\n26.07.2007 and sought for a short adjournment for filing an
\napplication for recall.  Thus, till as late as on 26th
\nJuly, 2007 when the appeal was taken up for hearing, the appellant
\nhad still not moved any such application. No sufficient cause has
\nbeen indicated in the memo of appeal as to why no such application
\ncould be filed within a reasonable period. A perusal of the order of
\nthe Tribunal indicates that it was not even the case of the appellant
\nbefore the Tribunal that the application for review or recall could
\nnot be filed on account of default on the part of the learned
\nadvocate for the appellant.  In the circumstances, in absence of
\nbasic facts being brought before the Tribunal to indicate that it was
\nactually on account of default on the part of the learned advocate
\nfor the appellant that the review application could not be filed, no
\ninfirmity can be found in the impugned order of the Tribunal in
\ndismissing the appeal on the ground that the appellant had failed to
\nmake pre-deposit in compliance with the order dated 06th
\nJanuary, 2006.\n<\/p>\n
8.\t\tAnother
\naspect which is required to be considered is that this is an appeal
\nunder section 35 of the Foreign Exchange Management Act, 1999.
\nSection 35 of the Act which provides for appeal to the High Court
\nlays down that any person aggrieved by any decision or order of the
\nAppellate Tribunal may file an appeal to the High Court within 60
\ndays from the date of communication of the decision or order of the
\nAppellate Tribunal to him on any question of law arising out of such
\norder.  A perusal of the memo of appeal indicates that no question of
\nlaw has been proposed.  In the circumstances, in absence of any
\nquestion of law being proposed, the appeal is required to be
\ndismissed on this ground alone.\n<\/p>\n
9.\t\tFor
\nthe foregoing reasons, no infirmity can be found in the impugned
\norder of the Tribunal so as to warrant interference.  No question of
\nlaw has been proposed, neither does any question of law arise out of
\nthe impugned order of the Tribunal. The appeal is accordingly
\ndismissed with no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t(
\nD.A. Mehta, J. )<\/p>\n
\t\t\t\t\t\t\t(
\nHarsha Devani, J. )<\/p>\n
hki<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jayesh vs Unknown on 25 March, 2010 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print TAXAP\/1946\/2008 8\/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1946 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE D.A.MEHTA HONOURABLE MS. JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-157985","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayesh vs Unknown on 25 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-unknown-on-25-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayesh vs Unknown on 25 March, 2010 - 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