THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA W.P. No. 21209 of 2011 Dated. 01-08-2011 Between: Mirza Khalid Baig …Petitioner Vs. The Director of Enforcement, Hyderabad Zonal Office, Shakar Bhavan, Fathe Maidan Road, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA W.P.No. 21209 of 2011 Dated: 01-08-2011 ORAL ORDER: (Per: GR,J) This writ petition is directed against the order of the 3rd respondent – The Appellate Tribunal for Foreign Exchange, New Delhi, rejecting Review Petition No. 41 of 2010 in Appeal No. 164 of 2006 preferred by the petitioner, by the order dated 18-02-2011. The review petition was preferred against the order dated 27-10-2008 passed by a single Judge Bench of the Appellate Tribunal in Appeal No. 164 of 2006 whereby the appeal by the writ petitioner against the order of the primary authority was dismissed, for non-compliance of the order dated 11-12- 2006. The substantive appeal was dismissed by the Appellate Tribunal on 27-10-2008. Two years thereafter the petitioner preferred the review. The primary and adjudicating authority – the Deputy Director – under the Foreign Exchange Management Act, 1999 (Act No. 42 of 1999) (for short ‘the Act’) imposed a penalty of Rs.7,00,000-00 (Rupees seven lakhs only). In an appeal by the petitioner, the Special Director (Appeals) reduced the penalty to Rs.5,00,000-00 (Rupees five lakhs only). Aggrieved, the petitioner preferred a further appeal under Section 19 of the Act to the 3rd respondent. The first proviso to Section 19 (1) of the Act enjoins that a special appeal may be filed against an order passed in an appeal by the Special Director levying a penalty, but the amount of penalty should be deposited at the time of filing of the appeal. The Second proviso to Section 19 (1) of the Act enables the Appellate Tribunal to dispense with the deposit of the penalty amount subject to such conditions as the Appellate Tribunal may deem fit to impose, so as to safeguard realization of the penalty amount. When the petitioner approached the 3rd respondent – Appellate Tribunal for exercise of discretion under the second proviso to Section 19(1) of the Act, the Appellate Tribunal passed an order dated 11-12-2006 directing the petitioner to deposit 60% of the amount of penalty determined by the 1st appellate authority and granting benefit of exemption from deposit, of 40% of the amount. Against this order, the petitioner filed W.P.No. 3425 of 2007. A learned Division Bench of this Court by the order dated 10-04-2007 dismissed the writ petition finding no reasons to interfere with the discretionary exercise by the Appellate Tribunal. As the petitioner did not deposit 60% of the amount of penalty as determined by the 1st appellate authority, the substantive appeal of the petitioner was dismissed by the 3rd respondent on 27-10-2008. The petitioner preferred a review of the order, pleading economic stringency for failing to deposit the amount as directed by the Tribunal as a condition precedent for entertaining the further appeal on merits. By the order impugned herein, the review application was dismissed on the ground that the deposit of the penalty being a pre-condition for hearing the appeal and since the Tribunal had already granted dispensation of the requirement of deposit to an extent of 40% of the amount of penalty and that the order having become final, the dismissal of the petitioner’s appeal earlier, not on merits, but on the failure to adhere to the condition of pre-deposit, was an order which did not call for a reconsideration in review. The order of Appellate Tribunal rejecting the review application is impeccable and warrants no interference. The writ petition is without merits and is accordingly dismissed. No costs. __________________________ JUSTICE GODA RAGHURAM ____________________________ JUSTICE ASHUTOSH MOHUNTA Dated: 01-08-2011 Pvks/*