TaxTMI 
TaxTMI 
2011 (5) TMI 16
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....Act, 1999 ('FEMA' for short). 2) The condonation of delay is sought on the ground that there was sufficient cause for not filing the appeal in time and since the appeal is filed under Section 54 of the FERA read with Section 49(5)(c) of FEMA, the High Court is empowered to condone the delay for any period of time subject to showing sufficient cause. 3) In the present case, for the offence allegedly committed under FERA, proceedings were initiated against the respondent after the commencement of FEMA as per Section 49 of FEMA and penalty was imposed under Section 50 of FERA read with Section 13(1) of FEMA. The question is, whether the first appeal and thereafter the second appeal filed against such penalty order could be said to have been filed before the authorities constituted under FERA or FEMA ? 4) Against the penalty order passed under Section 50 of FERA, an appeal was maintainable before the Foreign Exchange Regulation Appellate Board ('Appellate Board' for short) under Section 52 of FERA. Further appeal against the decision or order of the Appellate Board was maintainable before the High Court under Section 54 of FERA. As per the proviso to Sec....
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.... which reads thus :- " 35. Appeal to High Court, Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. " 8) In the present case, show cause notice was issued to the respondent on 31/5/2002, that is, within the period of two years from the commencement of FEMA as provided under Section 49(3) of FEMA. By the said notice, the respondent was called upon to show cause as to why adjudication proceedings should not be held against him for the alleged contravention of FERA. On the respondent showing cause, the matter was adjudicated and by an order in original dated 28/3/2008 the Special Director of Enforcement Directorate imposed penalty of Rs.7,00,00,000/- on the respondent under Section 50 of FERA read with Section 13(1) of FEMA. 9) I....
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....FERA read with Section 49(5)(c) of FEMA. 14) The learned ASG submits that under Section 6 of the General Clauses Act, 1897, when a Central Act is repealed and replaced by another Act, then the legal proceedings for enforcing a right accrued or acquired or liability incurred under the repealed Act remains unaffected and remain preserved as if the old Act continues to be operative unless the new Act manifests a contrary intention. He submitted that in order to see as to whether the rights and liabilities under the repealed law have been put to an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions expressly kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. Mere absence of a savings clause is not, by itself, material. In support of the above argument, the learned ASG relied upon the decisions of the Apex Court in the case of P.V.M., Barmay V/s. Director of Enforcement [AIR 1993 S.C. 1188], Gujarat Electricity Board V/s. Shantilal R. Desai [AIR 1969 S.C. 239], Jayantilal Amratlal V/s. Union of India [AIR 1971 S.C. 1193], T.S. Baliah V/s. T.S. Rang....
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....efore the appellate authorities constituted under FEMA within the period of limitation prescribed under FEMA. In other words, appeals against adjudication orders passed under FERA or FEMA after the commencement of FEMA, have to be filed before the appellate authorities constituted under FEMA within the period of limitation prescribed for filing appeals before the appellate authorities constituted under FEMA. 17) The argument of the learned ASG that the right of second appeal under Section 54 of FERA remains intact even after the commencement of FEMA is not acceptable because, Section 54 of FERA provides for appeal to the High Court against the order passed by the Appellate Board and not against the order passed by the Appellate Tribunal. In the present case, the appeal filed in this Court is against the order passed by the Appellate Tribunal and not against the order passed by the Appellate Board. There is no provision under FEMA to treat the order passed by the Appellate Tribunal to be the order passed by the Appellate Board. Therefore, the argument that the appeal filed against the order of the Appellate Tribunal should be treated as an appeal filed under Section 54 of FE....