2012 (11) TMI 971 - HC - FEMA

Court Upholds Dismissal of Appeals Under FERA for Filing Beyond 90 Days

The court affirmed the Tribunal's decision to treat the appeals under the provisions of the Foreign Exchange Regulation Act, 1973 (FERA) and upheld the ... Whether appeals before the Tribunal against the order of the adjudicating authority had to be treated by the Tribunal under the provisions of FERA or FEMA – Held that:- Order has been passed in the adjudication proceeding on 11th October, 2007 under the FERA after cognizance had been taken under the provisions of FERA. In view of this, the correctness, legality and proprietary of the order passed by the adjudicating authority has to be challenged in continuation of the proceeding under the FERA and has to be adjudicated under the provisions of FERA - cognizance having been taken within the sunset period and the adjudication proceeding carried out under the provisions of FERA, substantive provisions of FERA would alone be applicable - appeal filed before it was to be governed under the provisions of FERA Whether Tribunal has power to condone the delay beyond the period of 90 days - provisions of Section 35 of the Central Excise Act - Held that:- Provision of law stipulates a period of 60 days for filing an appeal; under the proviso another 30 days can be added to this period; the delay in filing the appeal can be condoned after the expiry of the 60 days yet the period of delay could not be condoned beyond 90 days - there is a complete exclusion of Section 5 of the Limitation Act - Tribunal has no power to condone the delay beyond the period of 90 days while dealing appeals under the FERA - appeals are dismissed Issues Involved:1. Whether the appeals before the Tribunal against the order of the adjudicating authority dated 11th October, 2007 had to be treated under the provisions of FERA or FEMARs.2. Whether the Tribunal has the power to condone the delay beyond the period of 90 daysRs.Issue-Wise Detailed Analysis:1. Treatment of Appeals under FERA or FEMA:The judgment addresses whether the appeals against the adjudicating authority's order dated 11th October, 2007 should be treated under the Foreign Exchange Regulation Act, 1973 (FERA) or the Foreign Exchange Management Act, 1999 (FEMA). The court notes that FEMA was enacted on 1st June, 2000, repealing FERA. According to Section 49(4) of FEMA, all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed, provided the cognizance of the offence was taken within two years from the commencement of FEMA. In this case, a memorandum was issued to M/S Opera House Exports Ltd. on 2nd May, 2001, within the sunset period. The adjudication order was passed on 11th October, 2007 under FERA after cognizance was taken within the sunset period. Therefore, the correctness, legality, and propriety of the order must be challenged under FERA. The Tribunal correctly treated the appeal under FERA, and the court affirmed this view, answering question (a) accordingly.2. Power to Condon Delay Beyond 90 Days:The court examines whether the Tribunal has the authority to condone delays beyond 90 days. Section 52(2) of FERA specifies that an appeal must be filed within 45 days from the date of the order, with a provision to extend this period up to a maximum of 90 days if sufficient cause is shown. The Tribunal dismissed the appeals as they were filed beyond this 90-day period, stating it had no power to condone delays beyond the statutory limit. The court supports this interpretation, referencing several precedents, including M.K. Suri Vs. Directorate of Enforcement, which held that the outer limit for filing an appeal under Section 52 of FERA is 90 days, beyond which the Tribunal cannot condone the delay. The court also cites similar interpretations in other statutes, such as the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997, and the Central Excise Act, 1944, reinforcing the principle that specific periods of limitation prescribed by special statutes cannot be extended beyond the maximum time limit specified. Consequently, the court answers question (b) by holding that the Tribunal has no power to condone delays beyond 90 days under FERA.Conclusion:The court concludes that the Tribunal was correct in treating the appeals under the provisions of FERA and in declining to entertain the appeals filed beyond the 90-day period. The appeals are dismissed for lack of merit.