1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 1647 OF 2009 CHANDAYA P. KARNIRE .. PETITIONER Vs. THE UNION OF INDIA & ANR. .. RESPONDENTS Mr. L. S. Shetty for petitioner Mr. Y. S. Bhate with Mr. Y. R. Mishra for respondents CORAM:SMT.RANJANA DESAI & J. P. DEVADHAR, JJ. DATE: 3/2/2009 P.C. . Rule. Returnable forthwith. 2. The petitioner has challenged in this writ petition order dated 24/9/08 whereby the Appellate Tribunal for Foreign Exchange in Appeal No. 126 of 1999 has directed the petitioner to deposit 40% of the penalty in each appeal. 3. We have heard learned counsel for the petitioner at some length. 2 4. It appears from the order in original that the information received in Bombay Zonal Office of Enforcement Directorate on 30/7/91 disclosed that Shri Rajesh Patel and Shri Niyogi Patel of M/s. Gold Coil were receiving huge amounts in cash which were then siphoned out of the country by over invoicing import of books. Information further disclosed that Shri Punambhai Patel father of Shri Rajesh Patel was also assisting in these dealings. 5. Pursuant to this information the office premises of the company were searched on 30/7/91 and on search some documents and Indian Currency were seized. Thereafter in follow up action statements of other persons were recorded. Statement of the petitioner was recorded on 31/7/91 and 1/8/91 under Section 40 of the FERA, 1973 in which he has stated that he had been working with M/s Lalwani Bros., for the last 20 years and that he had ceased to be an employee of M/s. Lalvani Bros. with effect from 1/5/1991. He is stated to have come to collect his arrears of salary. In his statement the petitioner has admitted that the imports were over invoiced. The petitioner was arrested. It appears that he retracted this 3 statement by letter dated 9/8/91 after he was released on bail on 8/8/91. 6. In our opinion from the order in original it prima facie appears that though the petitioner had admitted that the imports were over invoiced, the said statement has been retracted and there is nothing on record to suggest that the petitioner was the beneficiary of over invoicing done by M/s. Lalwani Bros. Where the employee merely carries on the instructions given by the employer in the course of employment whether the penalty can be imposed and in the present case, whether the penalty imposed is excessive is the question to be considered by the Tribunal. 7. Since prima facie there is no material on record to suggest that the petitioner was a beneficiary of the over invoicing done by the employer, we feel that this is a fit case where the pre-deposit should be waived. 8. We, therefore, modify the order of the Tribunal by directing that the appeal be heard without directing the petitioner to deposit any amount of penalty. We make it clear that all the 4 observations made by us in this order are prima facie observations and the appeal be disposed of independently, expeditiously and in accordance with law. Petition is disposed of in the aforestated terms. JUDGE JUDGE