IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 MFA.No. 18 of 2004() -------------------- APPEAL NO.18/1990 of APPELETTE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI .................... APPELLANT/RESPONDENT: -------------- THE DIRECTOR OF ENFORCEMENT, GOVT. OF INDIA. BY ADV. SRI.P.K.RAMKUMAR RESPONDENT/APPELLANT: --------------- P. SYED ALAVI HAJI, TARIFF METAL STORES, PERINTHALMANNA, MALAPPURAM DISTRICT, KERALA. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SMT.M.M.DEEPA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. --------------------------------- M.F.A. No.18 OF 2004 ------------------------------- Dated this the 12th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. This Miscellaneous First Appeal is filed, under Section 54 of the Foreign Exchange Regulation Act, 1973, (hereinafter referred to as “the Act”) against the order of the Appellate Tribunal for Foreign Exchange. The Special Director, Enforcement Directorate, by order dated 17.11.1989, imposed the penalty of Rs.4,50,000/- and Rs.4,00,000/- on the respondent, respectively, under Section 9(1) (b) & 9 (1) (d) of the Act. The respondent appealed to the Tribunal. A Single Bench of the Tribunal by the order impugned dated 5.5.2003 allowed the appeal in part. The penalty was reduced to Rs.40,000/- each for the violation of the provisions mentioned above. The appellant has preferred this appeal, challenging the said order of the Tribunal. M.F.A.No.18/2004 2 2. Though several grounds were taken, the learned counsel for the appellant submitted that he is only pressing one ground against the impugned order. According to him, the order has been passed by the Single Bench of the Tribunal in violation of Sub-section 6 of Section 52 of the Act. The said provision reads as follows: “52(6) The powers and functions of the Appellate Board may be exercised and discharged by Benches consisting of two members and constituted by the Chairman of the Appellate Board: Provided that if the members of the Bench differ on any point or points, they shall state the point or points on which they differ and refer the same to a third member (to be specified by the Chairman) for hearing on such point or points ans such point or points shall be decided according to the opinion of that member. Provided further that it shall be competent for the Chairman or any other member of the Appellate Board authorised by the Chairman in this behalf to exercise the powers and discharge the functions of the Appellate Board in respect of any appeal against an order imposing a penalty of an amount not exceeding two lakhs and fifty thousand rupees.” (emphasis supplied) M.F.A.No.18/2004 3 3. The Single Bench has jurisdiction only to deal with matters involving a penalty not exceeding Rs.2,50,000/- (Rs.Two lakhs fifty thousand only). Since the penalty involved is more than the said amount, only a Division Bench could have heard the matter. 4. We heard the learned counsel appearing for the respondent in the case. She submitted that the above ground is not a ground taken in the appeal memorandum. So, this Court may not consider the same. 5. Going by the provisions of the sub section (6) of Section 52 of the Act, we feel that there is substance in the contentions raised on behalf of the appellant. The Single Bench of the Tribunal has no jurisdiction to hear the appeal. If it was pleaded, definitely it was a substantial question of law against which an appeal will lie under Section 54. But, since this is is a pure legal question, which is apparent on the face of the record, we feel that it is not proper for us to reject the contention for the reason that it was raised only at the time of hearing the appeal. It is a ground touching upon the jurisdiction of the Tribunal M.F.A.No.18/2004 4 itself. Therefore, we are inclined to accept the submission of the appellant. Therefore, we hold that the Bench, which heard the matter, has no jurisdiction to hear the appeal. 6. In the result, the impugned order dated 5.5.2003 passed in appeal No.18/1990 by the Appellate Tribunal for Foreign Exchange, New Delhi, is set aside and the appeal filed by the respondent herein is remitted for fresh disposal, in accordance with law. The Miscellaneous First Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps