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ketan v. parekh= “Two significant expressions used in the provisions are “undue hardship to such person” and “safeguard the interests of the Revenue”. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka that under Indian conditions expression “undue hardship” is normally related to economic hardship. “Undue” which means something which is not merited by the conduct of

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10301 OF 2011

(Arising out of SLP(C) No.13932 of 2011)
Ketan V. Parekh … Appellant
versus
Special Director, Directorate of Enforcement

and another. … Respondent(s)
With
CIVIL APPEAL NO. 10302 OF 2011

(Arising out of SLP(C) No.13984 of 2011)
Kartik K. Parekh … Appellant
versus
Special Director, Directorate of Enforcement

and another. … Respondent(s)
CIVIL APPEAL NO.10303 OF 2011

(Arising out of SLP(C) No.13988 of 2011)
Panther Fincap and Management Services Ltd. … Appellant
versus
Special Director, Directorate of Enforcement

and another. … Respondent(s)
2

J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.

2. In these appeals prayer has been made for setting aside the order of the
Division Bench of the Bombay High Court whereby the applications filed by
the appellants for condonation of delay in filing appeals under Section 35 of the
Foreign Exchange Management Act, 1999 (for short, `the Act’) were dismissed
along with the appeals filed against order dated 2.8.2007 passed by the
Appellate Tribunal for Foreign Exchange (for short, `the Appellate Tribunal’).

Background facts
3. On an information received from the Reserve Bank of India that M/s.
Classic Credit Ltd. and M/s. Panther Fincap and Management Services Ltd. had
taken loan of 25 lakh shares each of DSQ Industries Ltd. on 1.3.2011 from M/s.
Greenfield Investment Ltd, Mauritius and the Indus Ind Bank Ltd with whom
M/s. Greenfield Investment Ltd. was maintaining NRE Account had informed
that records did not indicate any such transaction, the Directorate of
Enforcement, Mumbai conducted enquiries from different sources including
Securities and Exchange Board of India, Shri Ketan Parekh, M/s. Integrated
Enterprises (I) Ltd., Chennai and Indsec Securities and Finance Ltd. Thereafter,
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show cause notice dated 23.9.2004 was issued to M/s. Greenfield Investments
Ltd., Mauritius, Shri Pravin Guwalewala, Mauritius, Smt. Neena Guwalewala,
Mauritius, Shri A. K. Sen, Mauritius, M/s. Classic Credit Ltd., Mumbai, M/s.
Panther Fincap and Management Services Ltd., Mumbai, Shri Ketan Parekh,
Shri Kartik K. Parekh, Shri Kirit Kumar N. Parekh and Shri Navinchandra
Parekh for taking action against them for contravention of the provisions of the
Act. After hearing the noticees, the Special Director of Enforcement, Mumbai
(for short, `the Special Director’) passed order dated 30.1.2006 and, whereby he
held that some of the noticees had violated Sections 3(d) and 6(3)(e) of the Act
and imposed penalty of Rs.40 crores on M/s. Classic Credit Ltd.; Rs.40 crores
on M/s. Panther Fincap and Management Services Ltd.; Rs.75 crores on M/s.
Greenfield Investments Ltd.; Rs.80 crores on Shri Shri Ketan Parekh; Rs.12
crores on Shri Kartik K. Parekh; Rs.60 crores on Shri Pravin Guwalewala and
Rs.20 crores on Shri A.K. Sen with a direction that they shall deposit the
amount within 45 days from the date of receipt of the order.
4. The appellants challenged the aforesaid order by filing appeals under
Section 19 of the Act. They also filed applications under Rule 10 of the
Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules,
2000 read with Section 19 (1) of the Act for dispensing with the requirement of
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deposit of the amount of penalty. In paragraphs 4 to 8 of the application filed
by him, Shri Ketan V. Parekh made the following averments:
“4. The applicant submits that no case is made out against the

applicant as Section 3 (d) of the Act is only attracted in case of

a transaction in a foreign currency/foreign security. The

appellants case does not attract the provision of Section 3 (d) of

the Act.
5. That impugned order passed by Special Director is liable

to be set aside in view of the grounds of appeal and the

applicant has every hope of succeeding in the matter. As such

the applicant has a very good prima facie case on merits and is

likely to succeed in the appeal.
6. That the applicant is suffering from a grave financial

hardship since all his assets including, properties, movable and

immovable have been attached by an order of Ld. Debt

Recovery Tribunal on 11th April, 2001 (a copy of the order

dated 11th April, 2001 is annexed herewith and marked as

Annexure B-1). Moreover the applicant/appellant is a notified

person and all his assets including, properties, movable and

immovable have been attached by the Government of India

pursuant to the Notification dated 6th October, 2001. A copy of

the Notification dated 6th October, 2001 is attached herewith

and marked as Annexure B-2.
7. That the appellant is further suffering due to another

order of attachment passed by the Dy. CIT, Central Cir 40

under Section 281B of the Income Tax Act dated 7th April,

2003 whereby accounts of the appellant have been attached. A

copy of the order dated 07.04.2003 is attached herewith and

marked as Annexure-B3.
8. That by order dated 12th December, 2003 passed by

SEBI, the applicant has also been prohibited from carrying out

its business activity at buying selling or dealing in securities in

any manner directly or indirectly and have also been debarred

from associating with the Securities market for the period of
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Fourteen years. A copy of the SEBI order dated 12th December,

2003 is annexed herewith and marked as Annexure-B4.”
In paragraphs 4 to 10 of his application, Kartik Parekh averred as
under:
“4. The applicant submits that no case is made out against the

applicant as Section 3 (d) of the Act is only attracted in case of

a transaction in a foreign currency/foreign security. The

appellants case does not attract the provision of Section 3 (d) of

the Act.
5. The applicant submits that the appellant was at a same

footing as Mr. Kirit Kumar Parekh and Mr. Naveen Chandra

Parekh. While the respondent has exonerated Mr. Kirit Kumar

Parekh and Mr. Naveen Chandra Parekh from all offences, he

has perversely held the applicant/appellant liable for the

offences under the Act.
6. In any event, Mr. Ketan Parekh in his letter to the

adjudicating authority has admitted that the control and

management of the company fully vested in him and that the

applicant is not responsible for the day to day activities of the

company and hence cannot be held liable for the alleged

contravention of provisions of the Act. In any event, even for

the sake of argument it is admitted that the appellant was an

executive director of CCL and Panther, unless it can be proven

beyond any scope of doubt that the appellant was managing the

day to day operations of the aforesaid companies, he cannot be

held liable for any offence committed by the Company. The

impugned order will be set aside on this ground itself.

7. That impugned order passed by Special Director is liable

to be set aside in view of the grounds of appeal and the

applicant has every hope of succeeding in the matter. As such

the applicant has a very good prima facie case on merits and is

likely to succeed in the appeal.
8. That the applicant company is suffering from grave

financial hardship since the assets of the applicant/appellant
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have been attached pursuant to the order of the Hon’ble Debt

Recovery Tribunal, Mumbai dated 11th April, 2001 confirmed

on 25th September, 2001 ( a copy of the order dated 11th April,

2001 confirmed on 25th September, 2001 is annexed herewith

and marked as Annexure B-1).
9. That by order dated 12th December, 2003 passed by

SEBI, the appellant has been prohibited from carrying out its

business activity of buying, selling or dealing in securities in

any manner directly or indirectly and have also been debarred

from associating with the Securities market for the period of

fourteen years. (A copy of the SEBI order dated 12th

December, 2003 is annexed herewith and marked as Annexure-

B4.”
10. In view of the submissions made above it is respectfully

submitted that the applicant/appellant is not in a position to

deposit the penalty amount of Rs.12,00,00,000 (Rupees Twelve

Crores) imposed in the impugned order. The

appellant/applicant has absolutely no means to pay the penalty

amount as pre-deposit and such pre-deposit would cause undue

hardship to the applicant/appellant.”
In the application filed on behalf of M/s. Panther Fincap and
Management Services Limited, the following averments were made:
“4. The applicant submits that no case is made out against the

applicant as Section 3 (d) of the Act is only attracted in case of

a transaction in a foreign currency/foreign security. The

appellants case does not attract the provision of Section 3 (d) of

the Act.
5. That impugned order passed by Special Director is liable

to be set aside in view of the grounds of appeal and the

applicant has every hope of succeeding in the matter. As such

the applicant has a very good prima facie case on merits and is

likely to succeed in the appeal.
7

6. That the applicant is suffering from a grave financial

hardship since the accounts of the Company have also been

attached by the Income Tax Department under Section 281B of

the Income Tax Act by order dated 7th April, 2003 passed by

Dy. CIT, Central Cir. 40, Mumbai. Further even the Bank

accounts and properties of the promoter and managing director

of the Company has also been attached under Section 281B of

the Income Tax Act by order dated 7th April, 2003 passed by

Dy. CIT, Central Cir. 40, Mumbai ( a copy of the order dated

7th April, 2003 is annexed herewith and marked as Annexure B-

1).
7. That by order dated 12th December, 2003 passed by

SEBI, the appellant company as well as its promoter have been

prohibited from carrying out its business activity of buying,

selling or dealing in securities in any manner directly or

indirectly and have also been debarred from associating with

the Securities market for the period of fourteen years. (A copy

of the SEBI order dated 12th December, 2003 is annexed

herewith and marked as Annexure-B2.
8. In view of the submissions made above it is respectfully

submitted that the applicant/appellant is not in a position to

deposit the penalty amount of Rs.40,00,00,000 (Rupees Forty

Crores) imposed in the impugned order. The

appellant/applicant has absolutely no means to pay the penalty

amount as pre-deposit and such pre-deposit would cause undue

hardship to the applicant/appellant.”
5. After hearing the counsel for the parties, the Appellate Tribunal passed
order dated 2.8.2007 and directed the appellants to deposit 50% of the amount
of penalty with a stipulation that if they fail to do so, the appeals will be
dismissed. The relevant portion of that order is extracted below:
“Without discussing the merits of these appeals, we are of the

view that the adjudication order is not ex facie bad when the
8

price of the borrowed DSQ shares has not been discharged but

is required to be paid by the appellants which normally can be

at the place where creditor, i.e. GIL, resides or is engaged in

business, i.e. Mauritius. Therefore, allegations of contravention

of Section 3(d) cannot be termed as ex facie bad, hence the

appellants have no prima facie case. They have many questions

to answer. After deciding one factor included in “undue

hardship”, we proceed to look to the financial position of the

appellants. It is the burden on the appellants to disclose correct

financial position which in these appeals the appellants have

totally failed to disclose. The appellants are not candid enough

to bring out their correct financial status. Merely because

Directorate of Enforcement has not come out forcefully against

the ground of financial disability, this Tribunal cannot believe

that appellants, who were roaring in crores at one time, are not

in a position to make pre-deposit of the penalty, especially

when this Tribunal is simultaneously duty-bound to, as

provided in Second Proviso of Section 19 (1) FEM Act, 1999,

to ensure recovery of penalty. However, we are conscious that

this Tribunal may not unwittingly pass an order whereby

injustice can possibly be caused.”
(emphasis supplied)
6. Shri Ketan Parekh challenged the aforesaid order in Writ Petition
No.8385 of 2007 filed in the Delhi High Court on 13.11.2007. The other two
appellants, namely, Kartik K. Parekh and Panthar Fincap and Management
Services Ltd. filed Writ Petition Nos. 8231 and 8232 of 2007 on 5.11.2007 and
prayed for quashing the order of the Appellate Tribunal. After taking
cognizance of the judgment of this Court in Raj Kumar Shivhare v. Assistant
Director, Directorate of Enforcement (2010) 4 SCC 772, the learned Single
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Judge dismissed the writ petitions vide order dated 26.7.2010, the relevant
portions of which are extracted below:
“1. There is a categorical pronouncement on 12th April 2010

by the Supreme Court in Raj Kumar Shivhare v. Assistant

Director, Directorate of Enforcement (2010) 4 SCC 772 that

even an order passed by the Appellate Tribunal in an

application seeking dispensation of the pre-deposit of the

penalty would be appealable under Section 35 of the Foreign

Exchange Management Act 1999 (`FEMA’) and that the

remedy under Article 226 of the Constitution is not available

against such order.
2. In that view of the matter, the present petitions cannot be

entertained by this Court. It is, however, open to the Petitioners

to avail of the appropriate remedy in terms of para 45 of the

above judgment of the Supreme Court.
3. The petitions are dismissed.”

7. Thereafter, the appellants filed appeals under Section 35 of the Act
before the Bombay High Court. They also filed applications for condonation of
1056 days’ delay. The Division Bench of the Bombay High Court dismissed
the applications for condonation of delay by observing that it does not have the
power to entertain an appeal filed beyond 120 days and even though in terms of
the liberty given by the Delhi High Court, the appellants could have filed
appeals within 30 days, but they failed to do so and, therefore, delay in filing
the appeals cannot be condoned.
10

Arguments
8. Shri Ranjit Kumar, learned senior counsel appearing for the appellants
argued that the impugned order is liable to be set aside because while
dismissing the applications for condonation of delay, the Division Bench of the
High Court did not take cognizance of Section 14 of the Limitation Act, 1963.
Learned senior counsel submitted that in terms of that section, entire period
during which the writ petitions filed by the appellants remained pending before
the Delhi High Court is liable to be excluded while computing the period of
limitation and if that is done, the appeals filed under Section 35 cannot be
treated as barred by time. Learned senior counsel referred to Section 29(2) of
the Limitation Act and the judgments of this Court in State of Goa v. Western
Builders (2006) 6 SCC 239, Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department and others (2008) 7 SCC 169, Coal India
Limited and another v. Ujjal Transport Agency and others (2011) 1 SCC 117
and argued that even though the period of limitation prescribed under Section
35 of the Act is different from the period specified in Article 137 of the
Schedule appended to the Limitation Act, in the absence of express exclusion of
Section 14 of the Limitation Act, the appellants are entitled to seek exclusion of
the time spent by them in bona fide prosecution of remedy before a wrong
forum. Shri Ranjit Kumar submitted that at the time of filing writ petitions
11

before the Delhi High Court, all the High Courts were entertaining such
petitions and granting relief to the aggrieved parties and it is only after the
judgment in Raj Kumar Shivhare v. Assistant Director, Directorate of
Enforcement (supra) that the High Courts cannot entertain writ petition because
of the availability of the statutory remedy of appeal under Section 35 of the Act.
Learned senior counsel further submitted that if the period between 7.11.2007,
i.e. the date on which the writ petitions were filed before the Delhi High Court
and 26.7.2010, i.e. the date on which the same were dismissed is excluded, the
appeals filed before the Bombay High Court on 27.8.2010 cannot be treated as
barred by time. Learned senior counsel then argued that financial condition of
the appellant is extremely precarious and the Appellate Tribunal committed
serious error by directing them to deposit 50% of the penalty imposed by the
Special Director as a condition for hearing the appeals. He also referred to
affidavit dated 10.10.2008 filed by appellant Ketan V. Parekh before the
Appellate Tribunal to show that he was declared a notified person in terms of
Section 3(2) of the Special Court (Trial of Offences relating to Transactions in
Securities) Act, 1992 and all his moveable and immovable properties including
bank accounts have been attached and he has been prohibited from operating
the same.
12

9. Shri A. K. Panda, learned senior counsel appearing for the respondents
supported the impugned order and argued that the Division Bench of the
Bombay High Court did not commit any error by declining the appellants’
prayer for condonation of delay because the appeals were filed beyond the
maximum period prescribed under Section 35 and the provisions of the
Limitation Act cannot be invoked for condonation of delay or for exclusion of
the time during which the writ petitions filed by the appellants remained
pending before the Delhi High Court. Shri Panda emphasized that even before
the judgment of this Court in Raj Kumar Shivhare v. Assistant Director,
Directorate of Enforcement (supra), the legal position was crystal clear and in
terms of Section 35 of the Act an appeal could be filed against any decision or
order of the Appellate Tribunal within 60 days from the date of communication
of the decision or order and in terms of proviso to that section, the High Court
can extend the period by another 60 days and no more. Learned senior counsel
then submitted that the appellants cannot invoke Section 14 of the Limitation
Act because their action of filing the writ petitions before the Delhi High Court
was not bona fide. He pointed out that vide order dated 7.11.2007, the learned
Single Judge of the Delhi High Court had accepted the request made by counsel
appearing for the appellants and treated the writ petition filed by Kartik K.
Parekh as an appeal and similar order appears to have been passed in the case of
13

M/s. Panther Fincap and Management Services Limited but those orders were
subsequently recalled at the instance of the two appellants. Shri Panda
submitted that the Appellate Tribunal did not commit any error by directing the
appellants to deposit 50% of the penalty imposed by the Special Director
because they had been found guilty of clandestine monetary transactions and
did not disclose their true financial position. .

The relevant provisions :
10. Section 35 of the Act as also Sections 5, 14 and 29(1) and (2) of the
Limitation Act, which have bearing on the decision of the issue raised in the
appeals, read as under –
“35. Appeal to High Court – Any person aggrieved by any

decision or order of the Appellate Tribunal may file an appeal

to the High Court within sixty days from the date of

communication of the decision or order of the Appellate

Tribunal to him on any question of law arising out of such

order:
Provided that the High Court may, if it is satisfied that the

appellant was prevented by sufficient cause from filing the

appeal within the said period, allow it to be filed within a

further period not exceeding sixty days.
Explanation.–In this section “High Court” means–

(a) the High Court within the jurisdiction of which the

aggrieved party ordinarily resides or carries on business or

personally works for gain; and

(b) where the Central Government is the aggrieved party, the

High Court within the jurisdiction of which the respondent, or

in a case where there are more than one respondent, any of the
14

respondents, ordinarily resides or carries on business or

personally works for gain.”
5. Extension of prescribed period in certain cases – Any appeal

or any application, other than an application under any of the

provisions of Order XXI of the Code of Civil Procedure, 1908

(5 of 1908), may be admitted after the prescribed period, if the

appellant or the applicant satisfies the court that he had

sufficient cause for not preferring the appeal or making the

application within such period.
Explanation – The fact that the appellant or the applicant was

misled by any order, practice or judgment of the High Court in

ascertaining or computing the prescribed period may be

sufficient cause within the meaning of this section.
14. Exclusion of time of proceeding bona fide in court without

jurisdiction – (1) In computing the period of limitation for any

suit the time during which the plaintiff has been prosecuting

with due diligence another civil proceeding, whether in a court

of first instance or of the appeal or revision, against the

defendant shall be excluded, where the proceeding relates to the

same matter in issue and is prosecuted in good faith in a court

which, from defect of jurisdiction or other cause of a like

nature, is unable to entertain it.
(2) In computing the period of limitation for any application,

the time during which the applicant has been prosecuting with

due diligence another civil proceeding, whether in a court of

first instance or of appeal or revision, against the same party for

the same relief shall be excluded, where such proceeding is

prosecuted in good faith in a court of first instance or of appeal

or revision, against the same party for the same relief shall be

excluded, where such proceeding is prosecuted in good faith in

a court which, from defect of jurisdiction or other cause of a

like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order

XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the

provisions of sub-section (1) shall apply in relation to a fresh

suit instituted on permission granted by the court under rule 1
15

of that Order, where such permission is granted on the ground

that the first suit must fail by reason of a defect in the

jurisdiction of the court of other cause of a like nature.
Explanation – For the purpose of this section, –
(a) In excluding the time during which a former civil

proceeding was pending, the day on which that proceeding was

instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be

deemed to be prosecuting a proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed

to be a cause of a like nature with defect of jurisdiction.
29. Savings – (1) Nothing in this Act shall affect section 25 of

the Indian Contract Act,1872. ( 9 of 1872).
(2) Where any special or local law prescribes for any suit,

appeal or application a period of limitation different from the

period prescribed by the Schedule, the provisions of section 3

shall apply as if such period were the period prescribed by the

Schedule and for the purpose of determining any period of

limitation prescribed for any suit, appeal or application by any

special or local law, the provisions contained in sections 4 to 24

(inclusive) shall apply only in so far as, and to the extent to

which, they are not expressly excluded by such special or local

law.”

11. The question whether the High Court can entertain an appeal under
Section 35 of the Act beyond 120 days does not require much debate and has to
be answered against the appellants in view of the law laid down in Union of
India v. Popular Construction Co. (2001) 8 SCC 470, Singh Enterprises v. CCE
16

(2008) 3 SCC 70, Commissioner of Customs, Central Excise v. Punjab Fibres
Ltd. (2008) 3 SCC 73, Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department and others (supra), Commissioner of Customs
and Central Excise v. Hongo India Private Limited (2009) 5 SCC 791 and
Chhattisgarh State Electricity Board v. Central Electricity Regulatory
Commission and others (2010) 5 SCC 23.

12. In Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133,
this Court interpreted Section 29(2) of the Limitation Act in the context of the
provisions of the Representation of the People Act, 1951. It was argued that the
words “expressly excluded” appearing in Section 29(2) would mean that there
must be an explicit mention in the special or local law to the specific provisions
of the Limitation Act of which the operation is to be excluded. While rejecting
the argument, the three-Judge Bench observed:

” … what we have to see is whether the scheme of the special

law, that is in this case the Act, and the nature of the remedy

provided therein are such that the legislature intended it to be a

complete code by itself which alone should govern the several

matters provided by it. If on an examination of the relevant

provisions it is clear that the provisions of the Limitation Act

are necessarily excluded, then the benefits conferred therein

cannot be called in aid to supplement the provisions of the Act.

In our view, even in a case where the special law does not

exclude the provisions of Sections 4 to 24 of the Limitation Act

by an express reference, it would nonetheless be open to the

court to examine whether and to what extent the nature of those
17

provisions or the nature of the subject-matter and scheme of the

special law exclude their operation.”

(emphasis supplied)

13. In Union of India v. Popular Construction Company (supra), this Court
considered the question whether Section 5 of the Limitation Act can be invoked
for condonation of delay in filing an application under Section 34 of the
Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier
decisions in Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099,
Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133, Mangu
Ram v. MCD (1976) 1 SCC 392, Patel Naranbhai Marghabhai v. Dhulabhai
Galbabhai (1992) 4 SCC 264 and held:

“As far as the language of Section 34 of the 1996 Act is

concerned, the crucial words are `but not thereafter’ used in the

proviso to sub-section (3). In our opinion, this phrase would

amount to an express exclusion within the meaning of Section

29(2) of the Limitation Act, and would therefore bar the

application of Section 5 of that Act. Parliament did not need to

go further. To hold that the court could entertain an application

to set aside the award beyond the extended period under the

proviso, would render the phrase `but not thereafter’ wholly

otiose. No principle of interpretation would justify such a result.

Furthermore, Section 34(1) itself provides that recourse to a

court against an arbitral award may be made only by an

application for setting aside such award `in accordance with’

sub-section (2) and sub-section (3). Sub-section (2) relates to

grounds for setting aside an award and is not relevant for our

purposes. But an application filed beyond the period mentioned

in Section 34, sub-section (3) would not be an application `in
18

accordance with’ that sub-section. Consequently by virtue of

Section 34(1), recourse to the court against an arbitral award

cannot be made beyond the period prescribed. The importance

of the period fixed under Section 34 is emphasised by the

provisions of Section 36 which provide that:

`36. Enforcement.–Where the time for making an

application to set aside the arbitral award under Section

34 has expired … the award shall be enforced under the

Code of Civil Procedure, 1908 (5 of 1908) in the same

manner as if it were a decree of the court.’

This is a significant departure from the provisions of the

Arbitration Act, 1940. Under the 1940 Act, after the time to set

aside the award expired, the court was required to `proceed to

pronounce judgment according to the award, and upon the

judgment so pronounced a decree shall follow’ (Section 17).

Now the consequence of the time expiring under Section 34 of

the 1996 Act is that the award becomes immediately

enforceable without any further act of the court. If there were

any residual doubt on the interpretation of the language used in

Section 34, the scheme of the 1996 Act would resolve the issue

in favour of curtailment of the court’s powers by the exclusion

of the operation of Section 5 of the Limitation Act.”

14. In Singh Enterprises v. CCE (supra), the Court interpreted Section 35 of
the Central Excise Act, 1944 which is pari materia to Section 35 of the Act and
observed:

“The Commissioner of Central Excise (Appeals) as also the

tribunal being creatures of statute are not vested with

jurisdiction to condone the delay beyond the permissible period

provided under the statute. The period up to which the prayer

for condonation can be accepted is statutorily provided. It was

submitted that the logic of Section 5 of the Limitation Act,

1963 (in short `the Limitation Act’) can be availed for
19

condonation of delay. The first proviso to Section 35 makes the

position clear that the appeal has to be preferred within three

months from the date of communication to him of the decision

or order. However, if the Commissioner is satisfied that the

appellant was prevented by sufficient cause from presenting the

appeal within the aforesaid period of 60 days, he can allow it to

be presented within a further period of 30 days. In other words,

this clearly shows that the appeal has to be filed within 60 days

but in terms of the proviso further 30 days’ time can be granted

by the appellate authority to entertain the appeal. The proviso to

sub-section (1) of Section 35 makes the position crystal clear

that the appellate authority has no power to allow the appeal to

be presented beyond the period of 30 days. The language used

makes the position clear that the legislature intended the

appellate authority to entertain the appeal by condoning delay

only up to 30 days after the expiry of 60 days which is the

normal period for preferring appeal. Therefore, there is

complete exclusion of Section 5 of the Limitation Act. The

Commissioner and the High Court were therefore justified in

holding that there was no power to condone the delay after the

expiry of 30 days’ period.”
15. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation
Department and others (supra), a three-Judge Bench again considered Section
34(3) of the Arbitration and Conciliation Act, 1996. J.M. Panchal, J., speaking
for himself and Balakrishnan, C.J., referred to the relevant provisions and
observed:

“….When any special statute prescribes certain period of

limitation as well as provision for extension up to specified

time-limit, on sufficient cause being shown, then the period of

limitation prescribed under the special law shall prevail and to

that extent the provisions of the Limitation Act shall stand

excluded. As the intention of the legislature in enacting sub-

section (3) of Section 34 of the Act is that the application for
20

setting aside the award should be made within three months and

the period can be further extended on sufficient cause being

shown by another period of 30 days but not thereafter, this

Court is of the opinion that the provisions of Section 5 of the

Limitation Act would not be applicable because the

applicability of Section 5 of the Limitation Act stands excluded

because of the provisions of Section 29(2) of the Limitation

Act.”

16. In Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.
(supra), another three-Judge Bench considered the question whether Section 5
of the Limitation Act can be invoked for condonation of delay in filing an
appeal or reference to the High Court, referred to the judgments in Union of
India v. Popular Construction Co. (supra), Singh Enterprises v. CCE (supra) and
observed –

“As pointed out earlier, the language used in Sections 35, 35-B,

35-EE, 35-G and 35-H makes the position clear that an appeal

and reference to the High Court should be made within 180

days only from the date of communication of the decision or

order. In other words, the language used in other provisions

makes the position clear that the legislature intended the

appellate authority to entertain the appeal by condoning the

delay only up to 30 days after expiry of 60 days which is the

preliminary limitation period for preferring an appeal. In the

absence of any clause condoning the delay by showing

sufficient cause after the prescribed period, there is complete

exclusion of Section 5 of the Limitation Act. The High Court

was, therefore, justified in holding that there was no power to

condone the delay after expiry of the prescribed period of 180

days.”
21

17. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory
Commission (supra), a two-Judge Bench interpreted Section 125 of the
Electricity Act, 2003, which is substantially similar to Section 35 of the Act and
observed:

“Section 125 lays down that any person aggrieved by any

decision or order of the Tribunal can file an appeal to this Court

within 60 days from the date of communication of the decision

or order of the Tribunal. Proviso to Section 125 empowers this

Court to entertain an appeal filed within a further period of 60

days if it is satisfied that there was sufficient cause for not filing

appeal within the initial period of 60 days. This shows that the

period of limitation prescribed for filing appeals under Sections

111(2) and 125 is substantially different from the period

prescribed under the Limitation Act for filing suits, etc. The use

of the expression “within a further period of not exceeding 60

days” in the proviso to Section 125 makes it clear that the outer

limit for filing an appeal is 120 days. There is no provision in

the Act under which this Court can entertain an appeal filed

against the decision or order of the Tribunal after more than 120

days.

The object underlying establishment of a special adjudicatory

forum i.e. the Tribunal to deal with the grievance of any person

who may be aggrieved by an order of an adjudicating officer or

by an appropriate Commission with a provision for further

appeal to this Court and prescription of special limitation for

filing appeals under Sections 111 and 125 is to ensure that

disputes emanating from the operation and implementation of

different provisions of the Electricity Act are expeditiously

decided by an expert body and no court, except this Court, may

entertain challenge to the decision or order of the Tribunal. The

exclusion of the jurisdiction of the civil courts (Section 145)

qua an order made by an adjudicating officer is also a pointer in

that direction.
22

It is thus evident that the Electricity Act is a special legislation

within the meaning of Section 29(2) of the Limitation Act,

which lays down that where any special or local law prescribes

for any suit, appeal or application a period of limitation

different from the one prescribed by the Schedule, the

provisions of Section 3 shall apply as if such period were the

period prescribed by the Schedule and provisions contained in

Sections 4 to 24 (inclusive) shall apply for the purpose of

determining any period of limitation prescribed for any suit,

appeal or application unless they are not expressly excluded by

the special or local law.”

The Court then referred to some of the precedents and held:

“In view of the above discussion, we hold that Section 5 of the

Limitation Act cannot be invoked by this Court for entertaining

an appeal filed against the decision or order of the Tribunal

beyond the period of 120 days specified in Section 125 of the

Electricity Act and its proviso. Any interpretation of Section

125 of the Electricity Act which may attract the applicability of

Section 5 of the Limitation Act read with Section 29(2) thereof

will defeat the object of the legislation, namely, to provide

special limitation for filing an appeal against the decision or

order of the Tribunal and proviso to Section 125 will become

nugatory.”

18. The question whether Section 14 of the Limitation Act can be relied upon
for excluding the time spent in prosecuting remedy before a wrong forum was
considered by a two Judge Bench in State of Goa v. Western Builders (supra) in
the context of the provisions contained in Arbitration and Conciliation Act,
1996. The Bench referred to the provisions of the two Acts and observed:

“There is no provision in the whole of the Act which prohibits

discretion of the court. Under Section 14 of the Limitation Act
23

if the party has been bona fidely prosecuting his remedy before

the court which has no jurisdiction whether the period spent in

that proceedings shall be excluded or not. Learned counsel for

the respondent has taken us to the provisions of the Act of

1996: like Section 5, Section 8(1), Section 9, Section 11, sub-

sections (4), (6), (9) and sub-section (3) of Section 14, Section

27, Sections 34, 36, 37, 39(2) and (4), Section 41, sub-section

(2), Sections 42 and 43 and tried to emphasise with reference to

the aforesaid sections that wherever the legislature wanted to

give power to the court that has been incorporated in the

provisions, therefore, no further power should lie in the hands

of the court so as to enable to exclude the period spent in

prosecuting the remedy before other forum. It is true but at the

same time there is no prohibition incorporated in the statute for

curtailing the power of the court under Section 14 of the

Limitation Act. Much depends upon the words used in the

statute and not general principles applicable. By virtue of

Section 43 of the Act of 1996, the Limitation Act applies to the

proceedings under the Act of 1996 and the provisions of the

Limitation Act can only stand excluded to the extent wherever

different period has been prescribed under the Act, 1996. Since

there is no prohibition provided under Section 34, there is no

reason why Section 14 of the Limitation Act (sic not) be read in

the Act of 1996, which will advance the cause of justice. If the

statute is silent and there is no specific prohibition then the

statute should be interpreted which advances the cause of

justice.”

19. The same issue was again considered by the three-Judge Bench in
Consolidated Engineering Enterprises v. Principal Secretary, Irrigation
Department (supra) to which reference has been made hereinabove. After
holding that Section 5 of the Limitation Act cannot be invoked for condonation
of delay, Panchal, J (speaking for himself and Balakrishnan, C.J.) observed:
24

“Section 14 of the Limitation Act deals with exclusion of time

of proceeding bona fide in a court without jurisdiction. On

analysis of the said section, it becomes evident that the

following conditions must be satisfied before Section 14 can be

pressed into service:

(1) Both the prior and subsequent proceedings are civil

proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due

diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of

jurisdiction or other cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate

to the same matter in issue and;

(5) Both the proceedings are in a court.

The policy of the section is to afford protection to a litigant

against the bar of limitation when he institutes a proceeding

which by reason of some technical defect cannot be decided on

merits and is dismissed. While considering the provisions of

Section 14 of the Limitation Act, proper approach will have to

be adopted and the provisions will have to be interpreted so as

to advance the cause of justice rather than abort the

proceedings. It will be well to bear in mind that an element of

mistake is inherent in the invocation of Section 14. In fact, the

section is intended to provide relief against the bar of limitation

in cases of mistaken remedy or selection of a wrong forum. On

reading Section 14 of the Act it becomes clear that the

legislature has enacted the said section to exempt a certain

period covered by a bona fide litigious activity. Upon the words

used in the section, it is not possible to sustain the interpretation

that the principle underlying the said section, namely, that the

bar of limitation should not affect a person honestly doing his

best to get his case tried on merits but failing because the court

is unable to give him such a trial, would not be applicable to an
25

application filed under Section 34 of the Act of 1996. The

principle is clearly applicable not only to a case in which a

litigant brings his application in the court, that is, a court having

no jurisdiction to entertain it but also where he brings the suit or

the application in the wrong court in consequence of bona fide

mistake or (sic of) law or defect of procedure. Having regard to

the intention of the legislature this Court is of the firm opinion

that the equity underlying Section 14 should be applied to its

fullest extent and time taken diligently pursuing a remedy, in a

wrong court, should be excluded.

At this stage it would be relevant to ascertain whether there is

any express provision in the Act of 1996, which excludes the

applicability of Section 14 of the Limitation Act. On review of

the provisions of the Act of 1996 this Court finds that there is

no provision in the said Act which excludes the applicability of

the provisions of Section 14 of the Limitation Act to an

application submitted under Section 34 of the said Act. On the

contrary, this Court finds that Section 43 makes the provisions

of the Limitation Act, 1963 applicable to arbitration

proceedings. The proceedings under Section 34 are for the

purpose of challenging the award whereas the proceeding

referred to under Section 43 are the original proceedings which

can be equated with a suit in a court. Hence, Section 43

incorporating the Limitation Act will apply to the proceedings

in the arbitration as it applies to the proceedings of a suit in the

court. Sub-section (4) of Section 43, inter alia, provides that

where the court orders that an arbitral award be set aside, the

period between the commencement of the arbitration and the

date of the order of the court shall be excluded in computing the

time prescribed by the Limitation Act, 1963, for the

commencement of the proceedings with respect to the dispute

so submitted. If the period between the commencement of the

arbitration proceedings till the award is set aside by the court,

has to be excluded in computing the period of limitation

provided for any proceedings with respect to the dispute, there

is no good reason as to why it should not be held that the

provisions of Section 14 of the Limitation Act would be

applicable to an application submitted under Section 34 of the

Act of 1996, more particularly where no provision is to be
26

found in the Act of 1996, which excludes the applicability of

Section 14 of the Limitation Act, to an application made under

Section 34 of the Act. It is to be noticed that the powers under

Section 34 of the Act can be exercised by the court only if the

aggrieved party makes an application. The jurisdiction under

Section 34 of the Act, cannot be exercised suo motu. The total

period of four months within which an application, for setting

aside an arbitral award, has to be made is not unusually long.

Section 34 of the Act of 1996 would be unduly oppressive, if it

is held that the provisions of Section 14 of the Limitation Act

are not applicable to it, because cases are no doubt conceivable

where an aggrieved party, despite exercise of due diligence and

good faith, is unable to make an application within a period of

four months. From the scheme and language of Section 34 of

the Act of 1996, the intention of the legislature to exclude the

applicability of Section 14 of the Limitation Act is not manifest.

It is well to remember that Section 14 of the Limitation Act

does not provide for a fresh period of limitation but only

provides for the exclusion of a certain period. Having regard to

the legislative intent, it will have to be held that the provisions

of Section 14 of the Limitation Act, 1963 would be applicable

to an application submitted under Section 34 of the Act of 1996

for setting aside an arbitral award.”
In his concurring judgment, Raveendran, J. referred to the judgment in
State of Goa v. Western Builders (supra) and observed:

“On the other hand, Section 14 contained in Part III of the

Limitation Act does not relate to extension of the period of

limitation, but relates to exclusion of certain period while

computing the period of limitation. Neither sub-section (3) of

Section 34 of the AC Act nor any other provision of the AC Act

exclude the applicability of Section 14 of the Limitation Act to

applications under Section 34(1) of the AC Act. Nor will the

proviso to Section 34(3) exclude the application of Section 14,

as Section 14 is not a provision for extension of period of

limitation, but for exclusion of certain period while computing

the period of limitation. Having regard to Section 29(2) of the

Limitation Act, Section 14 of that Act will be applicable to an
27

application under Section 34(1) of the AC Act. Even when

there is cause to apply Section 14, the limitation period

continues to be three months and not more, but in computing

the limitation period of three months for the application under

Section 34(1) of the AC Act, the time during which the

applicant was prosecuting such application before the wrong

court is excluded, provided the proceeding in the wrong court

was prosecuted bona fide, with due diligence. Western Builders

therefore lays down the correct legal position.”

20. The same view was reiterated in Coal India Limited v. Ujjal Transport
Agency (supra).
21. The aforesaid three judgments do support the argument of Shri Ranjit
Kumar that even though Section 5 of the Limitation Act cannot be invoked for
condonation of delay in filing an appeal under the Act because that would
tantamount to amendment of the legislative mandate by which special period of
limitation has been prescribed, Section 14 can be invoked in an appropriate case
for exclusion of the time during which the aggrieved person may have
prosecuted with due diligence remedy before a wrong forum, but on a careful
scrutiny of the record of these cases, we are satisfied that Section 14 of the
Limitation Act cannot be relied upon for exclusion of the period during which
the writ petitions filed by the appellants remained pending before the Delhi
High Court. In the applications filed by them before the Bombay High Court,
the appellants had sought condonation of 1056 days’ delay by stating that after
28

receiving copy of the order passed by the Appellate Tribunal, they had filed
writ petitions before the Delhi High Court, which were disposed of on
26.7.2010 and, thereafter, they filed appeals before the Bombay High Court
under Section 35 of the Act. Paragraphs 1, 2 and 3 of the applications for
condonation of delay which are identical in all the cases were as under:
“1. The Appellant above named has preferred an Appeal

against the order dated 2nd August 2007 (hereinafter referred to

as the “impugned order”) passed by the Respondent No.1

against the Appellant above named. The Appellant states that

the impugned order was received by the Appellant on 5th

October 2007. The Appellant states that there is a delay of

1056 days in filing the above appeal, the reasons for which are

being stated in detail hereunder and, therefore, the Appellant

above named prays that the delay in filing the present appeal

may please be condoned.
2. RELIEFS SOUGHT :
(a) That this Hon’ble Court be pleased to condoned the delay

of 1056 days in filing the said Appeal;
(b) That such further and other reliefs as the facts and

circumstances may require.
3. REASONS FOR THE DELAY :
3.1 The Appellant declares that there is delay of 1056 days in

filing the appeal as prescribed in the Limitation Act, 1963.
3.2 The Appellant further states that the delay occurred as the

Writ Petition was filed before Delhi High Court on 5th

November, 2007. The said writ was filed under the provisions

of Articles 226 and 227 of the Constitution of India seeking
29

issuance of a writ order or direction in the nature of Mandamus

or any other writ for setting aside the impugned order dated 2nd

August, 2007, passed by the Appellate Tribunal for Foreign

Exchange under Rule 10 of the Adjudicating Proceedings and

Appeal, 2000 for Dispensation. In the said Writ proceedings

Hon’ble High Court of Delhi had passed an order on 26th July

2010. Vide the said order dated 26th July, 2010, while relying

on the judgment of the Hon’ble Supreme Court, it was held by

the Hon’ble Delhi High Court that even an order passed by the

Appellate Tribunal in an application seeking dispensation of

pre-deposit of the penalty would be appealable under section 35

of the FEMA and that remedy under Article 226 is not available

against such an order.
Further, Hon’ble Delhi High Court also held that the present

petition cannot be entertained by this Court. It is, however,

open to the Appellant’s to avail of the appropriate remedy in

terms of para 45 of the above judgment of the Supreme Court.
3.3 Hence, pursuant to the said order passed by Hon’ble

Delhi High Court the Appellant above named prefers an appeal

before this Hon’ble Bombay High Court.
3.4 Under the said circumstances the Appellant most humbly

prays that this Hon’ble Court may be pleased to condone the

delay.
3.5 It is submitted that the delay, in filing of the present

Appeal has not prejudiced the Respondent in any manner,

whatsoever, and, therefore, this Hon’ble Court be pleased to

condone the said delay.
3.6 It is, further submitted that the delay of 1056 days in

filing the present Appeal was bonafide, unintentional and

inadvertent.”
22. A careful reading of the above reproduced averments shows that there
was not even a whisper in the applications field by the appellants that they had
30

been prosecuting remedy before a wrong forum, i.e. the Delhi High Court with
due diligence and in good faith. Not only this, the prayer made in the
applications was for condonation of 1056 days’ delay and not for exclusion of
the time spent in prosecuting the writ petitions before the Delhi High Court.
This shows that the appellants were seeking to invoke Section 5 of the
Limitation Act, which, as mentioned above, cannot be pressed into service in
view of the language of Section 35 of the Act and interpretation of similar
provisions by this Court.

23. There is another reason why the benefit of Section 14 of the Limitation
Act cannot be extended to the appellants. All of them are well conversant with
various statutory provisions including FEMA. One of them was declared a
notified person under Section 3(2) of the Special Court (Trial of Offences
relating to Transactions in Securities) Act, 1992 and several civil and criminal
cases are pending against him. The very fact that they had engaged a group of
eminent Advocates to present their cause before the Delhi and the Bombay
High Courts shows that they have the assistance of legal experts and this seems
to the reason why they invoked the jurisdiction of the Delhi High Court and not
of the Bombay High Court despite the fact that they are residents of Bombay
and have been contesting other matters including the proceedings pending
31

before the Special Court at Bombay. It also appears that the appellants were
sure that keeping in view their past conduct, the Bombay High Court may not
interfere with the order of the Appellate Tribunal. Therefore, they took a
chance before the Delhi High Court and succeeded in persuading learned Single
Judge of the Court to entertain their prayer for stay of further proceedings
before the Appellate Tribunal. The promptness with which the learned senior
counsel appearing for appellant – Kartik K. Parekh made a statement before the
Delhi High Court on 7.11.2007 that the writ petition may be converted into an
appeal and considered on merits is a clear indication of the appellant’s
unwillingness to avail remedy before the High Court, i.e. the Bombay High
Court which had the exclusive jurisdiction to entertain an appeal under Section
35 of the Act. It is not possible to believe that as on 7.11.2007, the appellants
and their Advocates were not aware of the judgment of this Court in Ambica
Industries v. Commissioner of Central Excise (2007) 6 SCC 769 whereby
dismissal of the writ petition by the Delhi High Court on the ground of lack of
territorial jurisdiction was confirmed and it was observed that the parties cannot
be allowed to indulge in forum shopping. It has not at all surprised us that after
having made a prayer that the writ petitions filed by them be treated as appeals
under Section 35, two of the appellants filed applications for recall of that order.
No doubt, the learned Single Judge accepted their prayer and the Division
32

Bench confirmed the order of the learned Single Judge but the manner in which
the appellants prosecuted the writ petitions before the Delhi High Court leaves
no room for doubt that they had done so with the sole object of delaying
compliance of the direction given by the Appellate Tribunal and, by no stretch
of imagination, it can be said that they were bona fide prosecuting remedy
before a wrong forum. Rather, there was total absence of good faith, which is
sine qua non for invoking Section 14 of the Limitation Act.

24. The issue deserves to be considered from another angle. By taking
advantage of the liberty given by the learned Single Judge of the Delhi High
Court, the appellants invoked the jurisdiction of the Bombay High Court under
Section 35 of the Act. However, while doing so, they violated the time limit
specified in order dated 26.7.2010 which, in turn, is based on paragraph 45 of
the judgment of this Court in Raj Kumar Shivhare v. Assistant Director,
Directorate of Enforcement (supra). Indeed, it is not even the case of the
appellants that they had filed appeals under Section 35 of the Act within 30
days computed from 26.7.2010. Therefore, the Division Bench of the Bombay
High Court rightly observed that even though the issue relating to jurisdiction
of the Delhi High Court to grant time to the appellants to file appeals is highly
33

debatable, the time specified in the order passed by the Delhi High Court cannot
be extended.
25. In view of the above discussion, we hold that the impugned order does
not suffer from any legal infirmity.

26. Notwithstanding the above conclusion, we have considered the
submission of Shri Ranjit Kumar that the appellants are facing huge financial
crises and the Appellate Tribunal committed serious error by not entertaining
their prayer to dispense with the requirement of deposit of the amount of
penalty in its entirety, but have not felt convinced. In our considered view, the
appellants miserably failed to make out a case, which could justify an order by
the Appellate Tribunal to relieve them of the statutory obligation to deposit the
amount of penalty. The appellants have the exclusive knowledge of their
financial condition/status and it was their duty to candidly disclose all their
assets, movable and immovable including those in respect of which orders of
attachment may have been passed by the judicial and quasi judicial forums.
However, instead of coming clean, they tried to paint a gloomy picture about
their financial position, which the Appellate Tribunal rightly refused to accept.
If what was stated in the applications filed by the appellants and affidavit dated
10.10.2008 is correct, then the appellants must be in a state of begging which
34

not even a man of ordinary prudence will be prepared to accept. To us, it is
clear that the appellants deliberately concealed the facts relating to their
financial condition. Therefore, the Appellate Tribunal did not commit any error
by refusing to entertain their prayer for total exemption.

27. In this context, reference can usefully be made to the judgment of this
Court in Benara Values Ltd. v. Commissioner of Central Excise (2006) 13 SCC
347. In that case, a two Judge Bench interpreted Section 35-F of the Central
Excise Act, 1944, which is pari materia to Section 19(1) of the Act, referred to
the judgments in Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436,
Samarias Trading Co. (P) Ltd. v. S. Samuel (1984) 4 SCC 666, Commissioner
of Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260 and observed:

“Two significant expressions used in the provisions are “undue

hardship to such person” and “safeguard the interests of the

Revenue”. Therefore, while dealing with the application twin

requirements of considerations i.e. consideration of undue

hardship aspect and imposition of conditions to safeguard the

interests of the Revenue have to be kept in view.

As noted above there are two important expressions in Section

35-F. One is undue hardship. This is a matter within the special

knowledge of the applicant for waiver and has to be established

by him. A mere assertion about undue hardship would not be

sufficient. It was noted by this Court in S. Vasudeva v. State of

Karnataka that under Indian conditions expression “undue

hardship” is normally related to economic hardship. “Undue”

which means something which is not merited by the conduct of
35

the claimant, or is very much disproportionate to it. Undue

hardship is caused when the hardship is not warranted by the

circumstances.

For a hardship to be “undue” it must be shown that the

particular burden to observe or perform the requirement is out

of proportion to the nature of the requirement itself, and the

benefit which the applicant would derive from compliance with

it.

The word “undue” adds something more than just hardship. It

means an excessive hardship or a hardship greater than the

circumstances warrant.

The other aspect relates to imposition of condition to safeguard

the interests of the Revenue. This is an aspect which the

Tribunal has to bring into focus. It is for the Tribunal to impose

such conditions as are deemed proper to safeguard the interests

of the Revenue. Therefore, the Tribunal while dealing with the

application has to consider materials to be placed by the

assessee relating to undue hardship and also to stipulate

conditions as required to safeguard the interests of the

Revenue.”
28. The same view was reiterated in Indu Nissan Oxo Chemicals Industries
Ltd. v. Union of India (2007) 13 SCC 487 by considering proviso to Section
129-E of the Customs Act, 1962, which is almost identical to Section 19 of the
Act.

29. In the result, the appeals are dismissed. Four weeks’ further time is
allowed to the appellants to comply with the direction given by the Appellate
36

Tribunal, failing which the appeals filed by them shall stand automatically
dismissed. The parties are left to bear their own costs.

……………………………………..J.

[G.S. Singhvi]

……………………………………….J.

[Sudhansu Jyoti Mukhopadhaya]

New Delhi

November 29, 2011.

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