2011 (5) TMI 16 - HC - FEMA

Appeal Dismissed as Time-Barred under FEMA Section 35.

The court dismissed the Civil Application, ruling that the appeal filed was time-barred under Section 35 of FEMA. As the appeal exceeded the 120-day limit ... Condonation of delay - Section 35 of FEMA - 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 on any question 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. ' Held that: Applicant filed the appeal beyond time by 291 days - Therefore, this Court cannot condone the delay of 291 days in filing the appeal - Thus, the Civil Application is dismissed with no order as to costs. Issues Involved:1. Condonation of delay in filing the appeal.2. Jurisdiction and applicability of FERA and FEMA.3. Interpretation of Section 54 of FERA and Section 49(5)(c) of FEMA.4. Applicability of Section 35 of FEMA.5. Preservation of rights under repealed laws.Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The applicant Assistant Director, Enforcement Directorate, Mumbai sought condonation of a 291-day delay in filing the appeal against the Appellate Tribunal for Foreign Exchange's order dated 18/8/2009, which set aside a penalty of Rs. 7 crores imposed under Section 50 of FERA read with Section 13(1) of FEMA. The applicant argued that there was sufficient cause for the delay and that the High Court has the power to condone the delay under Section 54 of FERA read with Section 49(5)(c) of FEMA.2. Jurisdiction and Applicability of FERA and FEMA:The case involved an offense allegedly committed under FERA, but proceedings were initiated after the commencement of FEMA. The question arose whether the appeals against the penalty order should be filed under the authorities constituted under FERA or FEMA. FERA was replaced by FEMA on 1/6/2000, and the Appellate Board under FERA was dissolved, necessitating appeals to be filed before the Appellate Tribunal constituted under FEMA.3. Interpretation of Section 54 of FERA and Section 49(5)(c) of FEMA:The applicant contended that the appeal should be treated as filed under Section 54 of FERA or alternatively under Section 49(5)(c) of FEMA. However, the court found that Section 54 of FERA pertains to appeals against orders of the Appellate Board, which was dissolved with the commencement of FEMA. Therefore, appeals against adjudication orders under FERA had to be filed before the appellate authorities under FEMA within the prescribed period.4. Applicability of Section 35 of FEMA:Under Section 35 of FEMA, appeals against the Appellate Tribunal's decisions must be filed within 60 days, extendable by another 60 days if sufficient cause is shown. The court noted that any appeal filed beyond 120 days would be time-barred. The applicant's appeal was filed 291 days late, and thus, the High Court could not condone the delay.5. Preservation of Rights under Repealed Laws:The applicant argued that under Section 6 of the General Clauses Act, 1897, rights and liabilities under the repealed FERA should remain unaffected unless the new law (FEMA) expressly takes them away. The court, however, held that the right of second appeal under Section 54 of FERA did not remain intact after the commencement of FEMA, as the Appellate Board was expressly abolished, and appeals had to be filed under FEMA's appellate authorities.Conclusion:The court dismissed the Civil Application, holding that the appeal filed by the applicant was subject to the limitation prescribed under Section 35 of FEMA. Since the appeal was filed beyond the permissible period of 120 days, the court could not condone the delay of 291 days. The court emphasized that appeals against adjudication orders under FERA, after the commencement of FEMA, must adhere to the limitation periods prescribed under FEMA.