TaxTMI 
TaxTMI 
TaxTMI 
2009 (5) TMI 764
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....as FEMA, for short) with effect from 1st June, 2000. As per FERA read with Adjudication Proceedings and Appeal Rules, 1974, the Court fees payable on an appeal depends upon the quantum of fine and is subject to maximum Court fees of Rs.2,000/-. As per FEMA read with Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, the Court fees payable on an appeal before the Foreign Exchange Appellate Tribunal is Rs.10,000/-. The relevant provisions of FERA, FEMA and the two Rules read as under:- FERA 52. Appeal to Appellate Board (1) xxxx (2) Any person aggrieved by such order may, on payment of such fee as may be prescribed and after depositing the sum imposed by way of penalty under section 50 and within forty-five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board ....
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....e form of cash or demand draft payable in favour of the Registrar, Appellate Tribunal for Foreign Exchange, New Delhi. Provided that the applicant shall deposit the amount of penalty imposed by the Adjudicating Authority or the Special Director (Appeals) as the case may be, to such authority as may be notified under the first proviso to section 19 of the Act: Provided further that where in a particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realization of penalty." 2. The legal question which arises for consideration is whether Rule 6 of the Adjudication Proceedings and Appeal Rules, 1974 framed under FERA or Rule 10 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 framed under FEMA will apply to the present appeals in cases where adjudicating orders are passed under FERA but after repeal of FERA on 1st June, 2000. The answer to this legal question depends upon interpretation of Section 49 of FEMA and Section 6 of the General Clau....
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....d 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 licence, 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 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 exp....
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....low unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case." 4. In T.S. Baliah....
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.... and will not be entitled to claim any compensation for premature termination of his office or contract of service upon repeal of FERA on 1st June, 2000. Sub-section 3 to Section 49 incorporates a sunset clause and stipulates and begins with a non obstante phrase overriding any other enactment and predicates that no "court‟ shall take notice of any contravention under Section 51 of FERA after expiry of period of two years from the date of commencement of FEMA on 1st June, 2000. Sub-section 4 to Section 49 stipulates that "all offences" subject to sub-section 3 shall continue to be governed by the provisions of the repealed Act as if the repealed Act still continues as Law after 1st June, 2000. 8. Sub-section 5 to Section 49 of FEMA consists of three clauses (a), (b) and (c). Clause (a) of sub-section 5 to Section 49 enumerates that any action done or taken or purported to be done or taken including rule, notification, inspection, order or notice or any declaration made permission or authorization or exemption granted or any document or instrument executed under the repealed Act i.e. FERA, to the extent they are not inconsistent with the provisions of FEMA are deemed to be do....
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....osite and explain the purpose behind section 49(5) (a) of FEMA. 9. Clause (b) of sub-section 5 to Section 49 states that any appeal preferred before the Appellate Board under Section 52(2) of FERA shall stand transferred and will be disposed of by the Appellate Tribunal constituted under Section 18 of FEMA. Clause (c) of Sub-Section 5 is not relevant and it pertains to filing of the appeals before the High Court with which we are not concerned. 10. Sub-section 6 to Section 49 is the most crucial and the cornerstone of the contentions raised. The first part of the said sub-section protects the sunset clause and the two year limitation period for commencement of proceedings. It begins and ends with the words "save as otherwise provided in sub-section 3". Thus, the limitation period in the sunset clause of two years is expressly protected, inspite of the second part of sub-section 6. Sub-section 3 to Section 49, which provides for the limitation period of two years for commencement of proceedings, overrides the second portion of sub-section 6. 11. The second portion of sub-section 6 of Section 49 reads as "the mention of particular matters in sub-sections (2), (4) and (5) shall not....
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....et clause apply to them. Perhaps, the word "offences" used in sub-section 4 refers to violation of Section 51 of the Act as well as criminal offences and this explains the use of the word "court‟ in sub-section 3. However, I am not required to go into this aspect and give an authoritative opinion in view of the admitted position of both sides including Enforcement Directorate that the sunset clause mentioned in sub-section 3 applies to adjudication orders passed under Section 51 of FERA. 14. Clause (b) of Sub-Section 5 of Section 49 refers to appeals preferred and pending before the Appellate Board under FERA at the time of repeal. The said clause/part does not specifically refer to appeals preferred against adjudication orders passed under FERA after repeal with effect from 1st June, 2000. A reasonable interpretation, however, would be that the Appellate Board under FERA is substituted by Appellate Tribunal as the Appellate Forum. It is not the case of the respondent-Enforcement Directorate that Section 49 of FEMA seeks to altogether take away the appellate remedy against an adjudication order and the right to appeal before the Appellate Tribunal. In fact, the case pleaded ....
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....ralia before the High Court of Australia. It was held that the appeal after the enactment of the Judiciary Act, 1908 would lie before the High Court of Australia and Lord Macnaghten, who delivered the judgment of the Privy Council had said:- "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of r....
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....rsuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." 17. In the aforesaid case, the Supreme Court also examined the question of change or substitution of a Appellate forum by an ....
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....idered in reverse in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi and the principle of Colonial Sugar Refining Co. v. Irving was applied. Another decision in point is that of Nagendra Nath Bose v. Mon Mohan Singh. In that case the plaintiff instituted a suit for rent valued at Rs 1306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on 20-11-1926, for Rs 1600. On 19-12-1928, an application was made under Order 21 Rule 90 of the Code of Civil Procedure by the petitioner who was one of the judgment-debtors for setting aside the sale. That application having been dismissed for default of his appearance, the petitioner preferred an appeal to the District Judge, Hoogly, who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to Section 174(c) of the Bengal Tenancy Act as amended by an amending Act of 1928. The contention of the petitioner was that the amending provision, which came into force on 21-2-1929, could not affect his right of appeal from the decision on an application made on 19-12-1928, for setting aside the sale. Mi....
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....f the General Clauses Act, 1897 wanted to do away and take away the vested right to appeal or impose more stringent or harsher conditions on the right to appeal. The said reasoning will equally apply to adjudicating orders, which are passed pursuant to the sunset clause in sub-section 3 of Section 49. The effect of the sunset clause in sub-section 3 read with Section 6 to Section 49 is to make the provisions of General Clauses Act applicable to the repealed enactment i.e. FERA. However, in such cases proceedings should have commenced within the limitation period specified in sub-section 3, i.e., two years and not after two years. All proceedings which are initiated under sub-section 3 of Section 49 read with Section 6 of the General Clauses Act, 1897 the provisions of FERA will continue to apply except with one change that the Appellate Forum, Appellate Board stands substituted with Appellate Tribunal. Change of the Forum does not affect or take away vested right to appeal and does not carries with it stringent or more onerous conditions imposed for filing an Appeal under the FEMA Rules. Reference to Section 6 of the General Clauses Act, 1897 in sub-section 6 of Section 49 of FEMA ....
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.... repealed Act upon re-enactment of a new statute like Section 6 of the same Act which deals with effect of repeal of a Central Act or regulation. It preserves and instills continuity to notifications, orders, schemes, rules and bye-laws made or issued under the repealed Act unless they are inconsistent with the provisions of the re-enacted statute. Section 24 of the General Clauses Act, 1897 consists of three parts. In the present case we are not concerned with the last part. The first part stipulates that subordinate legislation mentioned therein consequent upon repeal of an Act or Regulation with re-enactment of a new Act shall continue to remain in force, if they are not inconsistent with the provisions of the re-enacted Act. Thus the subordinate legislation in the present case, the 1974 Rules framed under FERA will continue to remain in force and in operation as long as they are not inconsistent with the provisions of the new enactment, FEMA. The second part of the Section goes further and stipulates that when conditions of first part as satisfied, the subordinate legislation under the repealed Act shall be deemed to have been made or issued under the new Act unless the subordi....
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....under Section 52 of FERA read with Section 49 of FEMA. Rule 10 of 2000 Rules under FEMA by express stipulation applies to appeals filed under section 19 of FEMA. The new Rule does not apply to appeals filed under Section 52 of FERA. The 1974 Rules framed under FERA are applicable to all appeals, even after repeal and enactment of FEMA, when an appeal is filed against an adjudication order passed under FERA. The court fee provisions of 2000 Rules under FEMA do not apply to appeals under Section 52 of the FERA filed against adjudication orders passed under FERA. The court fee provisions of 2000 Rules under FEMA will apply to appeals filed under Section 19 of FEMA and not to appeals filed under Section 52 FERA. There is therefore no inconsistency between Rule 6 of the 1974 Rules under FERA and Rule 10 of the 2000 Rules under FEMA. Both operate independently and separately and to different category or types of appeals. Rule 6 of the 1974 Rules under FERA applies to appeals against order under FERA and Rule 10 applies to appeals against an order under FEMA. Section 24 of the General Clauses Act, 1897 therefore protects operation of Rule 6 of the 1974 Rules and the Court Fees prescribed ....