TaxTMI 
TaxTMI 
2012 (11) TMI 971
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (appellants before this Court). Appellants being aggrieved by the order of the adjudicating authority preferred appeals under Section 19(2) of the Foreign Exchange Management Act, 1999 (for short hereinafter referred to as "FEMA") bearing nos. 17/2008, 18/2008, 19/2008 and 20/2008 before the Tribunal. Tribunal has held that since the adjudicating order had been passed under the provisions of Section 51 of the FERA and the penalty was imposed under Section 40 of the FERA, remedy of appeal available to the appellants was under the FERA alone in view of Section 49 (4) of the FEMA. Thus, the appeals were treated under Section 52 of the FERA and dismissed being barred by time. It was observed that the adjudication order was passed on 11th October, 2007. Appeals were preferred before the Tribunal on 4th February, 2008 i.e. beyond the period of 90 days. Sub-section 2 of Section 52 of the FERA provided that Appellate Forum may entertain any appeal filed after expiry of 45 days but not after 90 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal against the adjudication order. Accordingly, Tribunal was of the view that it could not have....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the repealed Act as if that Act had not been repealed.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 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authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act; (b) any appeal preferred to the Appellate Board under sub- section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under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from any decision or order of the Appellate Board under sub- section (3) or sub- section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement: Provided that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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A, but after the repeal of the FERA, has held that 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. Petitioners in the said case were directed to pay Court Fees on the appeals filed by them as per the provisions of FERA read with the Adjudication Proceedings and Appeal Rules, 1974. 7. In this case memorandum was issued to M/S Opera House Exports Ltd. On 2nd May, 2001 i.e. within sun set period. Order has been passed in the adjudication proceeding on 11th October, 2007 under the FERA after cognizance had been taken under the provisions of FERA. In view of this, the correctness, legality and proprietary of the order passed by the adjudicating authority has to be challenged in continuation of the proceeding under the FERA and has to be adjudicated under the provisions of FERA. In view of the cognizance having been taken within the sunset period and the adjudication proceeding carried out under the provisions of FERA, substantive provisions of FERA would alone be applicable. Thus, the Tribunal was right in taking a view that the appeal filed before it w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....call for the records of such proceeding and make such order in the case as it thinks fit. (5) No order of the adjudicating officer made under section 50 read with section 51 shall be varied by the Appellate Board so as to prejudicially 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 Broad: 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 authorized by the Chairman in this behalf to exercise the powers and discharge the functions of the Appella....