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W.P. (C) No. 1552/2006 Page 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1552/2006
Date of decision: 18th May, 2009
ASHOK POKHARKAR ..... Petitioner
Through Ms. Meenakshi Arora & Ms. Poli Kataki,
Advocates.
versus
APPELLATE TRIBUNAL FOR FOREIGN ..... Respondent
Through Ms. Rajdipa Behura, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
Whether Reporters of local papers may be
allowed to see the judgment?
To be referred to the Reporter or not ?
Whether the judgment should be reported
in the Digest ?
O R D E R %
The petitioner-Mr. Ashok Pokharkar has impugned order dated 8th December, 2005 passed by the Appellate Tribunal for Foreign Exchange dismissing his application for waiver of pre-deposit of penalty amount of Rs.20 lacs. By the impugned order, the petitioner has been asked to deposit Rs.20 lacs, i.e., the entire penalty amount imposed by the Adjudicating Authority as a pre-condition for hearing of his appeal. 2. Learned counsel for the petitioner states that the petitioner was a clearing house agent and in 1995 is alleged to have procured a false bill of lading to enable a co-noticee to get benefit under Duty Exemption Entitlement Certificate Scheme. She submits that the statement of the co-
W.P. (C) No. 1552/2006 Page 2
noticee and the petitioner under Section 108 of the Customs Act, 1962 cannot be relied upon in proceedings under Foreign Exchange Regulation Act, 1973. She relies upon KTMS Mohd. And Another Versus Union of India, (1992) 3 SCC 178 and Noor Aga versus State of Punjab and Another, 2008 (9) Scale 681. She states that the Adjudicating Authority did not take into consideration the statement of the petitioner recorded under Section 40 of Foreign Exchange Regulation Act. It is stated that the petitioner does not file income tax returns as he does not have taxable income and it is impossible for him to pay Rs.20 lacs, i.e., the penalty amount for hearing of his appeal. She has drawn my attention to page 101 of the paper book, which shows that the two cheques of Rs.50,000/- and Rs.53,776/- issued by the co-noticee in favour of the petitioner were received back dishonoured. She states that the petitioner does not own any immovable property and is residing in a rented accommodation. She has also drawn my attention to the licence agreement dated 18th December, 2001 which states that the petitioner has taken a flat on license basis @ Rs.5,000/- per month and has paid security deposit of Rs.50,000/- . 3. I need not at this stage dilate in detail on the merits of the adjudication order. However, it is undisputed that the petitioner was a clearing house agent and the allegation is that he had procured a false bill of lading for the co-noticee. There is no evidence or material on record to
W.P. (C) No. 1552/2006 Page 3
dispute the averment made by the petitioner that he does not own any immovable property and is a tenant. The fact that the petitioner is not filing any income tax returns is also not denied or disputed by the respondent-Enforcement Directorate. The petitioner has filed first appeal before the Appellate Tribunal and the same has to be heard. Quantum of penalty is also an issue before the Appellate Tribunal. 4. In these circumstances, the impugned order is modified with the direction that the appeal of the petitioner will be heard on the deposit of Rs.2 lacs in two installments of Rs. 1 lac each. The first installment will be paid within thirty days of the passing of this order and the second installment will be paid within forty five days thereafter. The petitioner will also file an affidavit before the Adjudicating Authority giving details of his assets and movable and immovable assets of his wife and dependent children, i.e., children who are less than 18 years of age. The petitioner will file copy of latest bank account(s) along with the said affidavit with the Adjudicating Authority.
The writ petition is accordingly disposed of.
SANJIV KHANNA, J.
MAY 18, 2009
VKR