1. The appellants have filed an application in the instant appeal for exemption/waiver of pre-deposit of amount of the penalty. It has been submitted on behalf of the appellants that they have a good prima facie case and there are chances of the appellants of succeeding in the case as no incriminating evidence has been found against the appellant or any documents in support of the allegation are produced by the prosecution. It has further been submitted that the balance of convenience lies in favour of the appellant M/s Goastav Hotels (P.) Ltd. & Ors (in short company). The company is a small type trader and it would be impossible for the appellant to arrange a huge sum towards penalty. The Ld. Counsel for the appellant has filed written argument and the Ld. ALA for the respondent has also apart from the oral submissions had filed written arguments. The appellant No. 2 Mr. Sarfaraz Alam Director of the appellant No. 1 company has filed an affidavit annexing therewith the directors report and the income tax returns of the company. I have perused the said application, affidavit and written arguments and I have heard the Ld. Counsel for the appellants and Ld ALA for the respondent.

2. The Ld. Counsel for the appellants in support of his submissions has relied on the decisions of the following cases:

1. Sri Krishna v. Union of India 1998 (104) ELT 325 (Delhi)

2. Nimesh Suchde v. Union of India [2011] 107 SCL 183 (Delhi)

3. Monotosh Saha v. Special Directo, Enforcement Directorate [2008] 86 SCL 121 (SC)

4. Ram Pyare Mishra v. Prem Shanker AIR 2009 SC 552

5. Shanti Prasad Jain v. Director of Enforcement, Foreign Exchange Regulation Act AIR 1962 SC 1764

6. Nihon Nirman Ltd. v. Union of India 1999 (103) ELT 488 (Delhi)

The Ld. ALA has opposed the submissions of the Ld. Counsel for the appellants and has relied in support of his submissions on the decision of the Hon'ble Supreme Court of India in (1) Benara Valves Ltd. v. Commissioner of Central Excise 2006 (113) ECC 3l4 and (2) Monotosh Saha Special Director, Enforcement Director [2009] 1 CALLY l (SC).

It appears from the judgments relied upon by the Ld. Counsel for the appellants and the Ld.ALA for the respondent that this Tribunal for disposing of the application for dispensing with the pre-deposit of penalty under second proviso to section 19(1) of the Foreign Exchange Management Act, 1999 has to consider firstly as to whether the appellants have prima facie case secondly, that undue hardship, would be caused on them in case the dispensation with pre-deposit of penalty is not made in their favour and thirdly that what conditions may be imposed while granting any dispensation with the pre-deposit of penalty in favour of the appellant to safeguard the realization of penalty.

3. The contentions on behalf of the appellants inter alia for establishing the prima facie case are that the Adjudicating Authority has erroneously arrived at a conclusion that the Land in question which is purchased through FDI route is an agricultural land. The findings of the Adjudicating Authority is based on the assumption and presumption and is contrary to the documents and evidences placed on records. The letter of Collector (North Goa District) Goa only informed that no conversion sand from the agriculture to non-agriculture land has been issued. The land in question was purchased for setting up of hotel and resort and not to carry agricultural activities. The appellant No. 1 (company) is not in the business of any agricultural or plantation activities, which is prohibited under the notification. The notification in no manner prohibits acquisition of any agricultural land, which is capable of conversion or its use can be changed. The prosecution has erroneously arrived at a conclusion that if the land is acquired, which is in the nature of agricultural land then, on such land only agricultural activities can be carried out. It is submitted that the land in question falls in partly settlement zone and partly