This order of Appellate Tribunal for Foreign Exchange is delivered by Shri O.P. Nahar, Chairperson.

2. These four appeals (No. 488/2003 and 543/2004 by same company and No. 473/2003 and 475/2004 by Director and Managing Director respectively) are filed against a common Adjudication Order No. SDE/SKP/III/124/2003 dated 10.9.2003 passed by Special Director, Enforcement Directorate, imposing a penalty of Rs. 58 lakhs against the appellant-company and Rs. 29,00,000 each against the two appellant-Directors for contravention of Sections 8(3) and 8(4) r/w Section 68 Foreign Exchange Regulation Act, 1973, on the reasons that the appellants, after taking two remittances, itemized at Serial No. 3 & 8 of the Annexure to Show Cause Notice, of US dollars 174000 and US dollars 20,000 respectively for import of the goods failed to make such import and file proof thereof.

3. All these appeals are filed along with separate application for dispensation of pre-deposit of penalty under Section 52(2) FER Act, 1973, pleading undue hardship. While disposing off the application for dispensation of pre-deposit in Appeal Nos. 475/2004 and 543/2004 this Tribunal allowed by order dated 31.1.2005 dispensation of 90% of the penalty amount to both these appellants but directed them to deposit 10% each of the penalty within 60 days from that date. The appellant in Appeal No. 475/2004 informed this Tribunal by an application dated 31.3.2008 that 10% penalty is pre-deposited in compliance of this Tribunal's order dated 31.1.2005. However, such compliance by the appellant company in Appeal No. 543/2004 is not available on record and is not made. Nor any application for review or modification is filed by the appellant company against pre-deposit Order dated 31.1.2005.

4. Firstly, in Appeal No. 473/2003 & 488/2003 (having been filed by the same company and its Managing Director named Ravi Mittal but the peculiarity of filing is stated to have been made because of Separate Business Divisions maintained by the company, i.e. (1) Fertilizer Division and (2) Paper Division) challenge is restricted to remittance of US dollars 20,000 for import of the goods and imposition of penalty thereof. The application for dispensation of pre-deposit in Appeal No. 488/2003, which is second appeal of the company, has not yet been decided. But in Appeal No. 473/2003 of the Managing Director, the application for dispensation of pre-deposit is decided by Order dated 16.3.2004 allowing dispensation of 90% penalty but directing the appellant to deposit 10% of penalty within 3 months.

5. Here, it is necessary to state that in absence of pre-deposit of penalty or without any favourable decision of dispensation of pre-deposit of the Tribunal these appeals are not maintainable under Section 52(2) FDR Act, 1973, where it has been made obligatory in law that every appeal shall be filed along with pre-deposit of penalty unless this Tribunal allows dispensation with or without conditions on the grounds of undue hardship.

6. Secondly, the two other Appeal Nos. 473/2003 and 488/2003 have been filed by appellant-Director, and as In-charge of Paper Division, and appellant company respectively where challenge is mainly addressed to the taking of remittance of US dollars 1,74,000 for import of goods and imposition of penalty thereof though no separate quantum of penalty can be discerned from the impugned order on this count alone. These two appellants have also filed an affidavit and a bill of entry as a proof of import of the goods. Hers, it cab be said that bill of entry is merely a title document as per settled legal position and standing alone with no proof of payment of customs duty is not a proof of import of the goods. Further, the affidavit is a self-created document, hence, taken singly is difficult to be accepted as proof of import of goods. According to Section 8(3) r/w Section 8(4), the importer has to import the goods, and, thereafter file proof of import of the goods against receipt of f