2018 (9) TMI 669 - AT - FEMA

Dismissed appeal requires refiling with Special Director (Appeals) under FEMA, not subject to time limitations.

Shri Dilip Chandulal Shah Versus The Special Director Directorate of Enforcement, Ahmedabad

The appeal was dismissed, directing the appellant to file before the Special Director (Appeals) under FEMA jurisdiction, following the transition from ... Jurisdiction under FEMA v/s FERA - appeal lies to the Special Director (Appeals) or Deputy Director - appellant stated that as the appeal was filed under FERA before FEMA came into existence, the appeal should be heard by the Tribunal as under FERA there was no such provision for appeals going to the Special Director (Appeals) - Held that:- As decided in the case of Premier Limited vs. Union of India [2006 (7) TMI 326 - HIGH COURT OF BOMBAY].in Section 49(5)(a) of FEMA the legislature has provided that notwithstanding the repeal, actions taken under FERA shall be deemed to have been taken under the corresponding provisions of FEMA. In Section 49(5)(b) the legislature has provided that the appeals pending before the Appellate Board shall be transferred to the Appellate Tribunal constituted under FEMA. Reading Sub-section (a) and (b) of Section 49(5) of FEMA together, it is evident that unless specifically provided, all actions taken under FERA shall be deemed to have been taken under the corresponding provisions of FEMA. In this view of the matter, the adjudication orders passed by the Assistant Director/Deputy Director of Enforcement under FERA are deemed to be the adjudication orders passed under FEMA and accordingly the appeals against the orders passed by the Assistant Director/Deputy Director of Enforcement under FERA would be maintainable before the Special Director (Appeals) Hence appeals are to be filed/heard by the Special Director (Appeals). Accordingly, dismiss the appeal with liberty to the appellant to file the same before the Special Director (Appeals) Issues: Jurisdiction of appeal under FEMAAnalysis:The judgment revolves around the jurisdiction issue raised by the respondent's counsel regarding the appeal process under FEMA. The respondent argued that since the impugned adjudication order was issued by the Deputy Director, the appeal should be directed to the Special Director (Appeals) as per Section 17 of FEMA. On the other hand, the appellant contended that since the appeal was initially filed under FERA before the enactment of FEMA, it should be heard by the Tribunal as FERA did not provide for appeals to the Special Director (Appeals). The Tribunal examined Section 17(2) of FEMA, which clearly states the procedure for appeals against orders made by the Adjudicating Authority.The judgment referred to a significant decision by the Bombay High Court in the case of Premier Limited vs. Union of India, where the court addressed the transition from FERA to FEMA and the implications on appeal procedures. The court emphasized that with the establishment of FEMA, all appeals against adjudication orders, whether under FERA or FEMA, should be directed to the appellate forums constituted under FEMA. The court highlighted the provisions of Section 49(5) of FEMA, which deem actions taken under FERA to be under the corresponding provisions of FEMA. Consequently, adjudication orders under FERA by the Assistant Director/Deputy Director of Enforcement are considered orders under FEMA, making appeals against them maintainable before the Special Director (Appeals).In conclusion, the judgment dismissed the appeal, directing the appellant to file it before the Special Director (Appeals) in compliance with the jurisdictional requirements under FEMA. The dismissal was accompanied by the liberty for the appellant to re-file the appeal before the appropriate authority. Importantly, the issue of limitation was addressed, clarifying that the timely filing of the appeal with the Tribunal/Appellate Board would not pose a limitation issue if re-filed before the Special Director (Appeals). The judgment thus provides a clear interpretation of the jurisdictional framework for appeals under FEMA, ensuring adherence to the statutory provisions and legal precedents.