The main legal point established in the judgment is that the direction to pre-deposit a portion of the penalty under FERA did not cause undue hardship to the appellant, and the alleged violation of principles of natural justice and undue hardship were matters to be determined by the Appellate Tribunal.

R. BANUMATHI, J.

1. The appeal is preferred against the order of the Appellate Tribunal for Foreign Exchange, New Delhi in Appeal No.246 of 2008 (dated 04.01.2010) dismissing the appeal for non-compliance of judicial order under which the appellant was directed to make a pre-deposit of 5% of the penalty levied.

2. Brief facts are that the appellant in association with A.Kamal Basha are said to have received an amount of Rs.2,39,82,310/- from persons working in Kuwait in contravention of Section 9(1)(b) and are also said to have made payments to an extent of Rs.2,37,42,487/- in contravention of Section 9(1)(d) of Foreign Exchange Regulation Act, 1973 (in short, "FERA"). The appellant is also alleged to have remitted/caused to be remitted an amount of Rs.2,81,82,310/-in contravention of Section 9(3) of FERA. The appellant by receiving payment of Rs.42 lakhs and also making payments totalling Rs.41,58,000/- is said to have contravened Sections 9(1)(b) and 9(1)(d) of FERA. Show cause notice was served to the appellant on 1.3.1999 in the last known address. The appellant has sent reply dated 3.5.1999 through their Advocate K.A.Jabbar. In reply to their show cause notice, the appellant has denied the allegations and requested to drop for dropping the proceedings. The appellant requested for cross examination of the other accused and have given their statements implicating them in the case. The case has been posted for personal hearing on 18.12.2003 and the same was communicated to the appellant and Kamal Basha at their last known address and the same was returned undelivered with the endorsement "no such name" and "left". The adjudicating authority had taken up the case for adjudication and based on the available materials and reply to the show cause notice concluded the adjudication proceedings holding that the appellant and Kamal Basha has contravened the provisions of Section 9(1)(b) and 9 (1)(d) of FERA 1973 and 9(3) of FERA. The adjudicating authority imposed a penalty of Rs.1.25 Crores on the appellant under Section 50 of FERA read with Section 49(5) and (6) of Foreign Exchange Management Act, 1999 (in short, "FEMA").

3. The appellant has preferred an appeal under Section 19 of FEMA together with an application for dispensation of penalty before the Honourable Appellate Tribunal. After considering the request made by the appellant for dispensation of pre-deposit, by order dated 18.09.2009, the Appellate Tribunal granted dispensation of 95% of the penalty and directed the appellant to deposit 5% of the penalty amount within thirty days from the date of receipt of the order. The appellant has failed to comply with the pre-deposit in compliance with the order dated 18.09.2009. For non-compliance of the order under Section 52(2) of FERA, by the impugned order, the Appellate Tribunal dismissed the appeal on 4.1.2010.

4. Challenging the order dismissing the appeal, the appellant has preferred this appeal by raising the following questions of law:

"1.) Whether the confirmation of the impugned order of the original Adjudicating Authority passed Exparte by the Appellate Tribunal is valid and sustainable?

2.) Whether the Appellate Tribunal acted legally and properly in upholding the order passed by the original Adjudicating Authority in violation of and in contravention of Rule 3 of Adjudication proceedings and appeal Rules, 1974?

3.) Whether the respondent has made out a prima facie case for issuing the show cause notice under Sections 9(1)(b) and 9(1)(d), 9(1)(3) and 8(2) of the Foreign Exchange Regulation Act?

4.) Whether the Appellate Tribunal is justified in passing a conditional order to deposit 5% of the penalty amount for entertaining the Appeal, which was filed against the impugned order passed Ex-parte by the Original Adjudicating Authority?"

5. Even at the admission stage we have ordered notice to Mr.M.Dhandapani, the counsel for the first respondent. With consent of learned counsel for appellant, even in admi