1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO.49 OF 2008 Sanjay Khan, Managing Director, M/s.World Resorts Ltd. ...Appellant vs. Sri A.K.Bal, Special Director. ...Respondent. AND FERA APPEAL NO.50 OF 2008 M/s.World Resorts Ltd. ...Appellant vs. Sri A.K.Bal,Special Director. ...Respondent. --- Dr.V.V.Tulzapurkar i/b. Anil Menon & Associates, for Appellant. Mrs.S.V.Bharucha, for Respondent. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 16th October,2008. P.C.:- 1. Admit. Heard finally by consent of parties. 2 By consent of parties the following question of law is framed:- “Whether the tribunal could have, while hearing an appeal filed by the appellant challenging the penalty imposed on them in the absence of any appeal being filed or cross objections being filed by the Revenue, increased the amount of penalty ?” 2. The facts that are material and relevant for deciding this question are that by order passed by the Special Director dated 14.8.2003 under the provisions of Section 50 of the FERA Act read with Section 49(3) & (4) of the FEMA Act, imposing penalty of Rs.45,00,000/- on the appellant in appeal no.50 of 2008 and penalty of Rs.30,00,000/- on the appellant in appeal no.49 of 2008. Feeling aggrieved by that order they filed two appeals before the Tribunal. One appeal was appeal no.378 of 2003 which was filed by Sanjay Khan - the appellant in the present appeal no.49/08 and appeal no.379 of 2003 was filed by M/s.World Resorts Ltd.- the appellant in the present 3 appeal no.50/08. There was no appeal filed by the department. 3. Perusal of the order shows that during the course of hearing the Tribunal gave oral notice to the appellants to show cause as to why the amount of penalty should not be increased, and has proceeded to increase the amount of penalty of Rs.3 crores 15 lakhs against the Company and the Managing Director viz. appellants in both the appeals before the Tribunal. The short ground on which the order is challenged is that the Tribunal had firstly no power to enhance the amount of penalty in the absence of there being any appeal by the department, and secondly, this could not have been done merely by giving oral notice. It may be pointed out here that the learned Counsel appearing for appellants stated before us that so far as the penalty imposed by order dated 14.8.2003 which was challenged before the Tribunal is concerned, the appellants have paid the amount of penalty and they have now no grievance against that order. Therefore, now the only question to be considered is “whether the tribunal 4 can enhance the amount of penalty in the absence of any appeal”. The learned Counsel appearing for respondent fairly states that she does not find any such provision in law empowering the Tribunal to enhance the penalty suo-motto in the absence of any application or appeal. In the absence of any such power in the Tribunal, the Tribunal could not have enhanced the penalty. The appeal is, therefore, disposed of in terms of the following order:- (i) The order of the tribunal, challenged in both these appeals, enhancing the amount of penalty are set aside. (ii) It is clarified that the appellants do not, any more, challenge the order dated 14.8.2003 passed by the Special Director, and therefore, in case that order is not complied with by the appellants, the department will be entitled to enforce that order. The appeals are disposed of. 5 (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3103 OF 2008 IN FERA APPEAL NO.49 OF 2008 Sanjay Khan, Managing Director, M/s.World Resorts Ltd. ...Appellant vs. Sri A.K.Bal, Special Director. ...Respondent. AND CIVIL APPLICATION NO.3105 OF 2008 IN FERA APPEAL NO.50 OF 2008 M/s.World Resorts Ltd. ...Appellant vs. Sri A.K.Bal,Special Director. ...Respondent. --- Dr.V.V.Tulzapurkar i/b. Anil Menon & Associates, for Appellant. Mrs.S.V.Bharucha, for Respondent. 6 CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 16th October,2008. P.C.:- In view of the order passed today i.e. 16.10.2008 by this Court in FERA Appeal nos.49/08 and 50/08, the present civil applications do not survive for consideration, hence, disposed of. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)