TaxTMI 
TaxTMI 
2009 (5) TMI 536
X X X X Extracts X X X X
X X X X Extracts X X X X
....p; Date Event 21-12-2001 Asstt. Director, Enforcement Directorate, issued a letter to the Appellant under section 33(2) of FERA, 1973 read with section 49(3) and (4) of FEMA, 1999, thereby directing the Appellant to furnish the documentary proof pertaining to the Date of Import and the Date of submission of Exchange Control Copy of Bill of Entry. Dec., 2001 Asstt. Director, Enforcement Directorate addressed a letter to Citi Bank (being the authorized dealer through whom the appellant remitted the amount in foreign exchange) enquiring as to whether the appellant had produced Exchange Control Copy of Bill of Entry before it. 20-5-2002 Citi Bank wrote a letter to the Enforcement Directorate informing him that the Appellant had not submitted the bill of entries relating the above-said remittance. 29-5-2002 The respondent issued a show-cause notice to the appellant under rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 read with section 49(3) and (4) of FEMA, 1999 inter alia asking him to show cause as to why adjudication proceedings under section 51 of FERA, 1973 read with section 49(3) and (4) should not be initiated against the Appellant for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e pending appeals filed under the repealed Act. (g)The impugned order was against the principles laid down in the cases Premier Ltd. v. UOI 2006 (5) Bom. CR 12 and Directorate of Enforcement v. Appellate Ld. Tribunal , 108 [2003] DLT 1. (h)The Appellate Tribunal did not go into the merits of case and dismissed the appeal on a mere technical ground of limitation. (i)The appeal was fit to be converted into revision in order to overcome the hurdle of limitation. 4. The respondents have filed a reply to the appeal and have opposed the delay by alleging that : (i)Order-in-original had full details of the transaction under Question, therefore, the stand of the appellant that it did not have details of the transactions was not maintainable. (ii)Adjudication was initiated under the FERA, 1973. (iii)Appeal before the Appellate Tribunal was in continuation of the adjudication proceedings. (iv)Offence was committed under the repealed Act. (v)The order was in consonance with section 6(e) of the General Clauses Act. 5. Today, no body has appeared on behalf of the respondents to assist this Court. 6. A perusal of the record goes to show that even though the impug....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... limitation with a delay of 50 days. Therefore, this appeal falls totally outside the conversion formulate envisaged by Hon'ble High Court of Madhya Pradesh. Hence, this appeal cannot be converted into a revision petition. 16. For the reasons stated hereinabove, this appeal is rejected and dismissed on the grounds of delay filing by 50 days, much after expiry of outer period of 90 days. 7. Thus, the issue which arises for consideration before this Court is as to whether the appeal filed by the appellant before the First Appellate Authority which was admittedly barred by limitation could have been entertained by condoning the delay as prayed for or in the alternative to have converted the appeal in a revision. 8. The relevant provisions with respect to delaying of an appeal as per the Foreign Exchange Regulation Act, 1973 ('FERA') the original Act under which the show-cause notice was issued provides for an appeal under section 52(2) against an order which is the subject-matter of the appeal can be filed within 45 days from the date on which the order is served on the person who committed the contravention. Section 52 reads as under : "52. Appeal to Appellate Board.-(1) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icially affect any person without giving such person a reasonable opportunity for making a representation in the matter; and subject thereto the Appellate Board shall follow such procedure, in respect of the proceedings before it, as may be prescribed. (6) The powers and functions of the Appellate Board may be exercised and discharged by Benches consisting of two members and constituted by the Chairman of the Appellate Board : Provided that if the members of the Bench differ on any point or points, they shall state the point or points on which they differ and refer the same to a Third Member (to be specified by the Chairman) for hearing on such point or points and such point or points shall be decided according to the opinion of that member : Provided further that it shall be competent for the Chairman or any other member of the Appellate Board authorised by the Chairman in this behalf to exercise the powers and discharge the functions of the Appellate Board in respect of any appeal against an order imposing a penalty of an amount not exceeding two lakhs and fifty thousand rupees." 9. Sub-section (2) of section 52 goes to show that limitation can be extended for another....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act; (c)every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement : Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeal." 11. Learned counsel for the appellant submits that since this was not an appeal which was filed under the provisions of FERA till such time the said Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within the said period. (6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit." 12. It is thus submitted that since this appeal was filed under FEMA and had not been filed under FERA and was not pending disposal before the appellate authority till such time FEMA was repealed is to be governed by section 19 read with sections 49 and 52 of the earlier Act but here by virtue of the provisions under section 19 of FEMA there is a jurisdiction vested in the appellate authority to consider the question of limitation also. 13. Having perused the aforesaid order, it is apparent that the Appellate Authority has not considered the provisions available under section 19 for condoning the delay even though the appeal in this case was not filed under FERA nor was it filed before FE....