2017 (6) TMI 983 - HC - FEMA

Court dismisses appeal for delay under FEMA, citing lack of power to condone delay. Proviso excludes Limitation Act.

Union of India rep. by The Director of Enforcement Versus M/s. Kiran Overseas Ltd., Shri. O.P. Batra (Died) rep. by Ranjiv Batra, Shri. M.G. Gupta, Shri. Gopalakrishna Thiyagarajan, Shir. Kiren Batra, Shri. Ranjiv Batra

Union of India rep. by The Director of Enforcement Versus M/s. Kiran Overseas Ltd., Shri. O.P. Batra (Died) rep. by Ranjiv Batra, Shri. M.G. Gupta, Shri. ... Issues Involved:1. Condonation of delay in filing an appeal under Section 35 of FEMA.2. Applicability of Section 5 of the Limitation Act, 1963 to FEMA.3. Jurisdiction of the High Court to condone delay beyond the period specified in FEMA.Detailed Analysis:Condonation of Delay in Filing an Appeal under Section 35 of FEMA:The Union of India (Revenue) filed a Miscellaneous Petition seeking condonation of delay in filing an appeal under Section 35 of the Foreign Exchange Management Act, 1999 (FEMA). The appeal was at the registration stage pending the court's decision on the condonation petition. The respondents objected to the condonation of delay, arguing that the court lacked jurisdiction to condone the delay as FEMA is a special statute with a specific limitation period.Applicability of Section 5 of the Limitation Act, 1963 to FEMA:The respondents contended that Section 5 of the Limitation Act, 1963 does not apply to FEMA due to its special nature. They cited several judgments to support their plea, including Union of India V. Jagdish Prasad Jalan Nandalal, Union of India V. Reliance Industries Ltd., Union of India V. Ashok J. Ramsinghani, and M.R. Tobacco Pvt. Ltd. V. Union of India. The Revenue's counsel, however, relied on a Delhi High Court judgment in Kamlesh Ishwarbhai Patel V. UOI & Ors., which allowed condonation of delay under FEMA based on the Supreme Court's decision in Kailash V. Nanhku and Ors.Jurisdiction of the High Court to Condon Delay Beyond the Period Specified in FEMA:The court examined the provision in question, Section 35 of FEMA, which allows an appeal to the High Court within 60 days from the date of communication of the Tribunal's decision. The proviso permits the High Court to condone the delay for a further period not exceeding 60 days if sufficient cause is shown. The court noted that the language of the proviso to Section 35 of FEMA explicitly restricts the High Court's power to condone delay beyond the specified period. The court referred to the judgment in M.R. Tobacco Pvt. Ltd. V. Union of India, where the Supreme Court upheld that the High Court could not condone delay beyond the period provided in the proviso to Section 35 of the Central Excise Act, 1944, a provision similar to Section 35 of FEMA.The court also considered the Supreme Court's decision in Union of India V. Popular Construction Co., which dealt with Section 34 of the Arbitration and Conciliation Act, 1996. The Supreme Court held that the specific inclusion of certain sections of the Limitation Act in the special statute implied the exclusion of other provisions, including Section 5. The court concluded that the language of Section 35 of FEMA, coupled with its proviso, necessarily excluded the applicability of Section 5 of the Limitation Act.Conclusion:The court held that it lacked the power to condone the delay beyond the period specified in the proviso to Section 35 of FEMA. Consequently, the application for condonation of delay was dismissed, and the accompanying appeal, which was filed beyond the prescribed time frame, was also dismissed. The court emphasized that the language of the proviso to Section 35 of FEMA excluded the applicability of Section 5 of the Limitation Act by necessary implication, given that FEMA is a special law dealing with economic offences where speed and certainty are crucial.