TaxTMI 
TaxTMI 
TaxTMI 
2009 (11) TMI 679
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....01, after depositing the amount of penalty imposed, within 45 days from the date on which this order is served (Refer Section 19 read with Section 49(5) (a) of the Foreign Exchange Management Act, 1999." 3. Appeal against the impugned order was thereafter preferred before the Appellate Authority i.e. the Appellate Tribunal for Foreign Exchange. Vide order dated 26.3.2008 while confirming the penalty of Rs.2,50,000/- imposed upon the petitioner the said appeal had been dismissed inter alia on the following ground:- i. This appeal is admittedly filed after a delay of one 118 days on 6th September 2005 against an adjudication order received on 30.3.05. This Tribunal is not allowed to condone delay beyond 45 days by 1st Proviso of Section 52(2) FER Act 1973. ii. As this appeal has been filed after expiry of 90 days from the admitted date of service on the appellant, hence, this appeal is required to be dismissed because the delay of more than 90 days cannot be condoned even on sufficient cause as per the legislative scheme. This Tribunal is empowered to grant condonation upon showing of sufficient cause upto 45 days and not beyond that. Therefore, this appeal is liable to be dismis....
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....ay entertain an appeal after the expiry of the said period of 45 days if it is satisfied that there was a sufficient cause for not filing the appeal within the period. It is submitted that the Appellate Tribunal has arbitrarily and summarily dismissed the appeal of the petitioner without examining as to whether there was any sufficient cause for condoning the delay or not; the Appellate Authority has illegally applied the provisions of Section 52 of the FERA which is not the applicable provision; the applicability of the FERA is negatived; it is the provisions of the FEMA which would have been applicable. The Appellate Tribunal had also failed to consider that the GR forms for which the penalty had been imposed had been waived off by the Reserve Bank of India. In this view of the matter the Appellate Tribunal having rejected the appeal of the petitioner without going into these arguments has committed a gross illegality; impugned order is liable to be set aside. 7. This argument has been opposed by the learned counsel for the Enforcement Directorate. It is submitted that the appeal against the Adjudicating Authority, although presupposes a condition i.e. of a pre-deposit penalty o....
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....y of a period of two years from the date of the commencement of this Act. (4) Subject to the provisions of sub-section (3) 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. (5) Notwithstanding such repeal,- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) any appeal preferred to the Appellate Board under sub-section (2) of section52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall 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-sect....
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....erred and disposed of by the Appellate Tribunal constituted under the new Act i.e. the Tribunal constituted under the FEMA. 11. Sub-section (6) of Section 49 also specifies that the general application of Section (6) of the General Clauses Act 1987 save as provided in Sub-section(3) would not be effected. Section 6 of the General Clauses Act provides for a protection to any right, privilege, obligation or liability acquired or accrued under any enactments which had been repealed. 12. In the instant case the order has been passed in the adjudication proceedings on 30.3.2005, under the FERA after cognizance had been taken under the provisions of the FERA. Thereafter the appeal filed against the adjudication order was under Section 19 of the FEMA. Date of filing of this appeal is 2.9.2005. This is obviously for the reason that at this stage the Appellate Board constituted under the FERA had stood dissolved and Appellate Tribunal constituted under the FEMA had taken over; however the correctness, legality and the propriety of the order passed by the Adjudicating Authority being a continuation of the proceedings under the FERA has necessarily to be ajudged under the provisions of the....