Judgment :- 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. 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 admission stage, we have heard the arguments, both on admissibility as well as in the main appeal itself. 6. Under Section 52 (2) of FERA, before the appeal is preferred to the Appellate Board, the appellant has to deposit with the Board the sum imposed by way of penalty by the adjudicating officer. 6. Under Section 52 (2) of FERA, before the appeal is preferred to the Appellate Board, the appellant has to deposit with the Board the sum imposed by way of penalty by the adjudicating officer. As per the proviso, power has been conferred on the Appellate Board to dispense with such deposit in case if it is of opinion that such deposit will cause undue hardship to the appellant. Section 52(2) reads as under:- "52.) Appeal to Appellate Board. - (1) .... (2) Any person aggrieved by such order may, on payment of such fee as may be prescribed and after depositing the sum imposed by way of penalty under section 50 and within forty-five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit." 7. Section 54 makes provision for appeal to the High Court on questions of law from any decision or order of the Tribunal. Section 54 reads as under: "54.) Appeal to High Court. - An appeal shall lie to the High Court only on questions of law from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52: Provided that the High Court shall not entertain any appeal under this section if it is filed after the expiry of sixty days of the date of communication of the decision or order of the Appellate Board, unless the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time." 8. By reading of Section 54, it is clear that the High Court has got the power to hear the appeal against the order of the Appellate Board under sub-section (3) or sub-section (4) of Section 52; but the appeal shall lie only on questions of law. 9. By reading of Section 54, it is clear that the High Court has got the power to hear the appeal against the order of the Appellate Board under sub-section (3) or sub-section (4) of Section 52; but the appeal shall lie only on questions of law. 9. By a combined reading of Sections 52 and 54, it is seen that under the provisions of Foreign Exchange Regulation Act, the appeal lies to the High Court only as against any decision or order of the appellate Board passed under sub-section (3) or sub-section (4) of Section 52. Any direction to deposit the penalty amount or the order of dispensation passed by the Appellate Board is an order passed under Section 52(2) and the proviso thereon. As per Section 54 of FERA, as against the order passed under Section 52(2) or the proviso thereon, no appeal shall lie to the High Court. 10. Contending that a question of law is involved in the order passed under Section 52 (2), learned counsel for appellant placed reliance upon a decision of Karnataka High Court in the case of MRS.SUDERSHAN BOURY VS. THE DIRECTOR OF ENFORCEMENT, NEW DELHI, (AIR 1982 KARNATAKA 135). In the said case, the Karnataka High Court was considering the question of imposing penalty under Section 50 of the Foreign Exchange Regulation Act, which involves a complex process and intricate questions of fact and law. In such facts and circumstances, the Karnataka High Court held that the levy of penalty under Section50 is a question of law. In the case on hand, order to pre-deposit 5% of the penalty is under challenge. Hence the said decision is not applicable to the case on hand. 11. Repeal of FERA and enactment of FEMA:-Foreign Exchange Regulation Act, 1973 has been repealed by Foreign Exchange Management Act and the Appellate Board constituted under FERA has been dissolved. However, all the offences committed under FERA would continue to be governed by the provisions of the repealed Act as if the Act had not been repealed. 11. Repeal of FERA and enactment of FEMA:-Foreign Exchange Regulation Act, 1973 has been repealed by Foreign Exchange Management Act and the Appellate Board constituted under FERA has been dissolved. However, all the offences committed under FERA would continue to be governed by the provisions of the repealed Act as if the Act had not been repealed. Sub-section (5) of Section 49 of FEMA provides that notwithstanding the repeal, (a) anything done or any action taken including any rule, notification, inspection, order or notice or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed Act which is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act; (b) any appeal made to the Appellate Board under section 52(2) of FERA but not disposed of before the commencement of this Act will be transferred and disposed of by the Appellate Tribunal; (c) any appeal against the decision or order of Appellate Board under section 52(3) or 52(4) of FERA, shall, if not filed before the commencement of this Act, be filed before the High Court within sixty days of commencement of this Act. However the High Court may entertain the appeal after the expiry of the sixty days period if it is satisfied that there was sufficient cause which prevented the appellant from filing the appeal. 12. Section 19 of FEMA deals with Appeal to Appellate Tribunal, which is the corresponding provision to Section 52 of FERA. As per proviso to Section 19(1), any person appealing against the order of the Adjudicating Authority, or Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government. As per the second proviso to Section 19(1), in any particular case, where the appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. 13. Section 35 of FEMA deals with Appeal to High Court. As per Section 35, which reads as under:- "35) - Appeal to High Court. 13. Section 35 of FEMA deals with Appeal to High Court. As per Section 35, which reads 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 quest on 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." Thus under Section 35 of FEMA, as against any decision or order of the Appellate Tribunal, appeal lies to the High Court on any question of law arising out of such order. 14. As per Section 52(2) of the FERA or Section 19(1) FEMA and the second proviso thereon, the Order directing the deposit of penalty and the order dispensing with the condition of pre-deposit is a discretion of the Appellate Authority. By the impugned order, the Appellate Authority has exercised its discretion in dispensing pre-deposit of major penalty of 95% and directed the appellant to deposit only 5% of the penalty imposed. Considering the exercise of discretion by the Appellate Tribunal directing the appellant to deposit 5%, in our considered view, no question of law is involved to entertain the appeal. 15. Discretion under Section 52:- Section 52 of FERA provides a conditional right of appeal in respect of an appeal against the levy of penalty under Section 50. Although the Section does not expressly provide for rejection of appeal for non-deposit of duty or penalty, yet, it makes obligatory on the part of the appellant to deposit the duty or penalty pending the appeal, failing which the Appellate Tribunal is competent to reject the appeal. The proviso however gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. The expressions used are ‘undue hardship’ ....... and ........ ‘subject to such conditions as it may deem fit’. Thus, it is a matter of judicial discretion of the Appellate Tribunal. 16. Considering the scope of Section 19 of FEMA, in MONOTOSH SAHA VS. The expressions used are ‘undue hardship’ ....... and ........ ‘subject to such conditions as it may deem fit’. Thus, it is a matter of judicial discretion of the Appellate Tribunal. 16. Considering the scope of Section 19 of FEMA, in MONOTOSH SAHA VS. SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE, (2010 (18) S.T.R. 81 (SC)), the Supreme Court held that two significant expressions used in Section 19 of the Act are "undue hardship to such person" ..... and ..... "safeguard the realisation of penalty". It was further held that while dealing with application, twin requirements of considerations are: consideration of undue hardship aspect and imposition of conditions to safeguard the realisation of penalty. In Paragraph Nos.12 to 15, holding that it is for the Tribunal to impose such conditions as are deemed proper to safeguard the realisation of penalty, Supreme Court held as under: "12.) As noted above there are two important expressions in Section 19(1). 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 ( AIR 1994 SC 923 ) that under Indian conditions the expression ‘undue hardship’ is normally related to economic hardship. ‘Undue’ which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13.) 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. 14.) The word ‘undue’ adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15.) The other aspect relates to imposition of conditions to safeguard the realisation of penalty. 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 realisation of penalty. It means an excessive hardship or a hardship greater than the circumstances warrant. 15.) The other aspect relates to imposition of conditions to safeguard the realisation of penalty. 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 realisation of penalty. 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 realisation of penalty.” 17. Contention of Appellant is that Appellant is not in a financial position even to pay 5% of the pre-deposit and direction to pre-deposit 5% would cause undue hardship to the appellant and the appellant prays for dispensation of entire amount of pre-deposit. In this regard, the learned counsel for appellant placed reliance upon a decision of the Supreme Court in the case of BHAVYA APPARELS PVT.LTD. AND ANOTHER VS. UNION OF INDIA AND ANOTHER, (AIR 2007 SC (Supp) 950). The said case arose out of the order passed under Section 129-E of the Customs Act, which mandates pre-deposit of any duty and interest in appeal, which is preferred in respect of the goods, which are not under the control of the Customs authorities. In the said case, pointing out that the custody of the goods/ part of the goods was in the custody of the revenue and that the question has to be considered afresh, the Supreme Court remitted the matter back to the Tribunal for consideration of the matter afresh. The above decision is not applicable to the case on hand. 18. Contending that the direction to pre-deposit 5% of the penalty would cause undue hardship, the learned counsel for appellant placed reliance upon a decision of the Supreme Court in the case of BENARA VALVES LTD. AND ANOTHER VS. COMMISSIONER OF CENTRAL EXCISE AND ANOTHER, ((2006) 13 SCC 347), which arose out of the direction for pre-deposit for hearing the appeal under Section 35F of the Central Excise Act. Section 35-F provides for appeal and pre-deposit for hearing the appeal. Section 35-F also contains the expressions ‘undue hardship to assessee’ and ‘safeguard the interests of the Revenue’. COMMISSIONER OF CENTRAL EXCISE AND ANOTHER, ((2006) 13 SCC 347), which arose out of the direction for pre-deposit for hearing the appeal under Section 35F of the Central Excise Act. Section 35-F provides for appeal and pre-deposit for hearing the appeal. Section 35-F also contains the expressions ‘undue hardship to assessee’ and ‘safeguard the interests of the Revenue’. Proviso to Section 35-F of the Central Excise Act gives a discretion to the Appellate Tribunal to deposit less amount as it may deem fit so as to safeguard the interests of the Revenue. In the said case, the Appellant was directed to deposit 25% of the duty levied. At the time of suspending the order, the Supreme Court directed the appellant to deposit Rs.4,00,000/- and Rs.30,00,000/- and in the facts and circumstances of the case, the Supreme Court held that no further deposit need be made. It is pertinent to note that in the said decision also, the Supreme Court has not completely waived the pre-deposit. 19. The decisions of the Supreme Court in the case of VIJAY PRAKASH D. MEHTA AND JAWAHAR D. MEHTA VS. COLLECTOR OF CUSTOMS (PREVENTIVE), BOMBAY ( AIR 1988 SC 2010 ) and this Court in the case of UNION OF INDIA REP.BY THE COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, MADRAS AND ANOTEHR VS. MESSRS. MARCEL NAVENS, MADRAS AND OTHER, ( 1978 (II) MLJ 122 ) relied upon by the Appellant are not applicable to the case on hand. 20. Re-Contention - Violation of Principles of Natural Justice:- Section 51 of FERA calls upon the adjudicating officer to hold an enquiry in the prescribed manner. Rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 prescribes the manner. Section 51 read with Rule 3 contemplates two stages : (i) issuance of show cause notice; (ii) where the adjudicating authority does not accept the cause shown by the person, the adjudicating officer has to hold enquiry in the prescribed manner after giving that person a reasonable opportunity for making a representation in the manner; and (iii) on such enquiry, if the adjudicating officer is satisfied that the person has committed the contravention, the adjudicating authority to impose such penalty. 21. In this case, the show cause notice was issued on 1.3.1999 for which the appellant has sent the reply through his lawyer K.A.Jabbar on 3.5.1999 denying the allegations made in the show cause notice. 21. In this case, the show cause notice was issued on 1.3.1999 for which the appellant has sent the reply through his lawyer K.A.Jabbar on 3.5.1999 denying the allegations made in the show cause notice. In the show cause notice, the appellant has requested for cross examination of the other accused and the third parties, who have given statement implicating them in the case. Thereafter the Additional Commissioner proceeded with the matter for personal hearing on 18.12.2003 and the same was communicated to the appellant to his address viz., No.18/2, Jonehan Street, R.A.Puram, Chennai - 600 028 and also Kamal Basha. The same has been returned unserved with remarks "no such name" and "left". Under those circumstances, the Adjudicating Officer/Additional Commissioner had gone through the show cause notice and also the reply given to the show cause notice and other materials on record and passed the order imposing penalty. 22. The contention of the appellant is that when the case was posted for personal hearing on 18.12.2003, the appellant was not given any opportunity. Further contention of appellant is that in their reply to the show cause notice, the appellant has sought for cross examination of the other accused and also the third parties, who have given statements implicating the appellant and having regard to the stand taken by the appellant in their reply, the appellant ought to have been given an opportunity to cross examine the witnesses. Further contention of appellant is that even though reply to the show cause notice was sent by the appellant, through his counsel - K.A.Jabbar, no hearing notice was sent to the counsel and that without giving any opportunity either to the party or to the counsel, the Additional Commissioner/ Adjudicating Officer proceeded to pass the order on 22.1.2004. 23. It was mainly contended that while considering the request for dispensation of pre-deposit, the Appellate Tribunal ought to have taken note of the violation of principles of natural justice and that in view of non-affording of opportunity by the Additional Commissioner, the order of the Appellate Authority directing the appellant to deposit 5% of the penalty has caused undue hardship to the appellant and in such facts and circumstances of the case, the appeal is well maintainable. It was further submitted that when the appellant has duly authorised his counsel to issue reply to the show cause notice, notice should have been served upon the counsel for appellant. It was also contended that if really the notice sent to the appellant was returned with remarks "no such name" and "left", the authorities should have taken efforts for serving notice as contemplated under Rule 10 and in the absence of any materials to show that requirements of Rule 10 has been satisfied, there was contravention of Rules 3 and 10 and violation of principles of natural justice and in view of the prejudice caused to the appellant, the Appellate Tribunal must have dispensed with the pre-deposit. 24. In support of his contention that when the appellant was not found on the given address, the fresh notice ought to have been sent, the learned counsel for appellant placed reliance upon a decision of the Supreme Court in the case of PAYAL ASHOK KUMAR JINDAL VS. CAPTAIN ASHOK KUMAR JINDAL, ( 1992 (60) ELT 19 (SC)). In the said case, the Court sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before the Court and both the notices came back with the endorsement that "the appellant could not be found on the given addresses". There was no material on the record to reach a conclusion that the appellant refused to receive the notices. Further, in the said case, there was also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant's relations at the given addresses. In such facts and circumstances of the case, the Supreme Court has held that the Courts below were wholly justified in holding that the appellant refused to receive the notices and held that the notices could have been received by any of her relations on the given address and held that the "interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated". 25. 25. Mr.Dhandapani, learned counsel for respondents would submit that the case on hand is clearly distinguishable on facts and the learned counsel would submit that after the notices sent to the appellant were returned with endorsement "no such addressee" and "left", the Enforcement Directorate had taken all efforts to serve notice by affixture. Whether notice had been served on the appellant or not and whether there was due compliance of Rule 10 of the Adjudication Proceedings and Appeal Rules is a matter to be determined by the Appellate Tribunal. 26. By perusal of the typed set of papers, we find that show cause notice was sent to the appellant to his address in Chennai viz., No.18/2, Jonehan Street, R.A.Puram, Chennai - 600 028. Notice was also sent to Kamal Basha to the address viz., No.13, Nethaji 6th Street, Lakshmipuram, Thiruvanmiyur, Chennai. In response to the said notice, the appellant had sent a reply through his counsel. By perusal of the order of the Additional Commissioner/Adjudicating Authority, it is seen that notice was sent to the appellant to his Chennai address - "No.18/2, Jonehan Street, R.A.Puram, Chennai -600 028". But the said notice was returned with endorsement "no such name" and "left". It is seen that the requirement of Rule 10 are prima facie satisfied. The appellant has not come out with correct details as to his whereabouts during the relevant period. By perusal of the memorandum of appeal filed under Section 9 of the FEMA before the Appellate Tribunal, it is seen that the order of Additional Commissioner/Adjudicating Authority dated 22.1.2004 was served on the appellant on 25.03.2004. When the appellant appeared for hearing before the Additional Chief Metropolitan Magistrate -E.O.II, Chennai for the case - E.O.C.C.No.33 of 2044. On the merits of the contentions, the questions as to whether the 1st respondent has not taken effective steps for serving notice upon the appellant and whether there was violation of Principles of Natural Justice and it caused prejudice to the appellant are to be considered only by the appellate authority. 27. The alleged violation of principles of natural justice cannot be put in a straight jacket formula. It depends upon the facts and circumstances of the case. There is a clear distinction between cases, where there was no hearing at all and the cases, where there were mere technical infringement of natural justice. 27. The alleged violation of principles of natural justice cannot be put in a straight jacket formula. It depends upon the facts and circumstances of the case. There is a clear distinction between cases, where there was no hearing at all and the cases, where there were mere technical infringement of natural justice. In the light of facts and circumstances of the case, it is for the Appellate Authority to consider whether there was violation of principles of natural justice and whether any prejudice was caused to the appellant. We are of the view that only considering the facts and circumstances of the case, the Appellate Tribunal exercised its discretion waiving 95% of the penalty and directing the appellant to pre-deposit only 5% of the penalty. 28. The only question falling for our consideration is, whether the direction of the Appellate Authority to pre-deposit 5% of the penalty has caused undue hardship to the appellant. Considering the scope of expressions "undue hardship" occurring in proviso to Section 19(1) and observing that while dealing with application for dispensation of pre-deposit, the interest of the revenue has to be kept in view, in BANARA VALVES LTD. VS. COMMISSIONER OF CENTRAL EXCISE, ((2006) 13 SCC 347), the Supreme Court held as under: "11.) 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. 12.) 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 (1993) 3 SCC 467 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 the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. ‘Undue’ which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13.) 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. 14.) The word ‘undue’ adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15.) 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." 29. The question falling for consideration is, whether the appellant has shown "undue hardship". As per Section 50 of FERA, the penalty shall be upto five times of the alleged violation. Even though the alleged contravention by the appellant is to the extent of more than Rs.5 Crores, the adjudicating authority/Additional Commissioner imposed only a penalty of Rs.1.25 Crores. The Appellate Tribunal has directed the appellant to deposit 5% of the penalty amount. In our considered view, there is no improper exercise of discretion to entertain this appeal. It cannot be said that the impugned order has caused undue hardship to the appellant warranting interference with the order. 30. In the result, the Civil Miscellaneous Appeal is dismissed. However, there is no order as to costs Consequently, the connected miscellaneous petition is also dismissed.