Dr. H.K. Mudgil, Actg. Chairperson - By means of the present applications, the applicants/appellants seek stay of the Impugned Order no. SDE/BK/111/03/2010 dated 14.05.2010, passed by Shri Balesh Kumar, Special Director, Directorate of Enforcement, New Delhi in respect of SCN No.T-4/8-D/94 & for waiver of pre-deposit of penalty amount i.e Rs.65,00,000/- (Rupees Sixty five lakhs), Rs 10,00,000/- (Rupees Ten lakhs) & Rs.10,00,000/- (Rupees Ten lakhs) vide Appeal Nos.143,144,145 of 2010 respectively, imposed by Special Director, Directorate of Enforcement, New Delhi for the contravention of the provisions of Sections 2(h), 8(1), 9(1)(a), 6(4), 6(5), 49, 64(2), 68, 73(3) of FERA, 1973 & paras 29-A-3, 29-B-5, 29-B-8(a), 29-B-9(c) & 29-B-4 of Chapter 29 of ECM, 1987. The applicant/appellant in Appeal No.143/2010 is a foreign bank, earliar it was named as ANZ Grindlays & now, it has been merged with Standard Chartered Bank, who is carrying on its banking activies in accordance with law, whereas the applicants/appellants in Appeal No.144/2010 & 145/2010 are retired officers of the aforesaid Bank.

2. The facts of the case have been stated in detail in the Memorandum of Appeal, filed by the applicants/appellants and in the interests of brevity, are not being repeated here.

3. While elaborating the grounds for seeking dispensation with the requirement of deposit of the penalty amount during the pendency and till the final disposal of the Appeal, Ld. Counsel for the applicants/appellants reiterated all the points mentioned in the Appeals as well as in the applications. Ld. Counsel emphasized that the applicants/appellants have a good case on merits and there is every likelihood of the applicants/appellants succeeding in the Appeals as the balance of convenience is in favour of the applicants/appellants. It is further stressed that the applicants/appellants seek waiver of the pre-deposit of the penalty amount as on the facts of the case, there is absolutely no breach or violation of the provisions of FERA or the guidelines issued by Reserve Bank of India. Regarding the financial position of the applicants/appellants of Appeal Nos.144 & 145, Ld. Counsel submitted that the applicants/appellants have no means to pay such exorbitant penalty, imposed by the Adjudicating Officer as the applicants/appellants of Appeal no 144 & 145 are retired officers of the aforesaid Bank, earliar it was named as ANZ Grindlays & now, it has been merged with Standard Chartered Bank. It is also stressed that the appellant Bank has already got the entire money repatriate back to the country at a higher rate of Foreign Exchange, out of its own profits and therefore, any condition of pre-deposit would cause a great hardship on the Appellant. It is also emphasized that no prejudice would be caused to the respondent in the event of dispensing with the pre deposit of the penalty amount. It is also stated that there is a good prima facie case and in case, stay/waiver is not granted, the applicants/appellants would face undue hardship or otherwise.

In support of his contention, Ld. Counsel for the Applicants/Appellants placed reliance on a catena of Authorities/judgment titled as Benara Valves Ltd. v. CCE [2007] 6 STT 13 (SC), Bank of Baroda v. ATFE [WP(C) No. 2570 and CM 1848 of 2005, decided on 24.02.2005] by Hon'ble High Court of Delhi, Hindustan Steel Ltd. v. State of Orissa 1978 ELT (J 159) SC, & J.N. Khanna v. Union of India [C.W.P. NO.3881 of 1995, decided on 21.01.2010] by Hon'ble High Court of Delhi.

4. On the other hand, Shri B. Naveen Kumar, ALA for the respondent controverted all the submissions of the Ld. Counsel for the applicants/appellants. He submitted that the applicants/appellants are seeking stay of Adjudicating Order & waiver of pre-deposit of the penalty amount only on the ground of prima facie case and there is absolutely no averment of undue hardship, which is a condition precedent to consider the petition for dispensation of pre-deposit of penalt