TaxTMI 
TaxTMI 
2013 (1) TMI 128
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....rein this Court issued notice and stayed further proceedings before the Learned Tribunal. Vide order dated 30th July, 2010 this Court disposed of the writ petition in view of the decision of the Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement (2010) 4 SCC 772 holding that appropriate remedy would be by way of filing an appeal. On 2nd August, 2010 the Appellant applied for a certified copy of the order which was delivered on 9th August, 2010. The Appellant filed the present appeal on the 10th February, 2011. The reasons for delay in filing the present appeal as stated on affidavit are that the Appellant is a resident outside Delhi and has limited means. It took some time for the Appellant to arrange necessary funds for the purpose of filing the appeal. Further, due to shifting of the Advocate's office, the file of the writ petition could not be traced and so there was some delay in tracing out the file. Thus, it is prayed that the delay of 166 days in filing the appeal be condoned. 3. Learned counsel for the Appellant relying upon Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480 and Thirumalai Chemicals Limited Vs. Union of India & Ors. ....
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....y in nature so as to exclude Section 5 of the Limitation Act and curtail all powers of High Court to condone the delay beyond the period of 120 days. In Commissioner of Customs, Central Excise, Noida; Singh Enterprises and Goodearth Steels Pvt. Ltd. (supra) the Hon'ble Supreme Court while considering Section 35(H) of the Central Excise Act, 1944 took the view that first proviso to Section 35 makes the position clear that the appeal has to be preferred between three months from the date of communication, that is if the Commissioner is satisfied that the Appellant was prevented by sufficient cause from filing the appeal within the aforesaid period of 60 days, he may allow it to be presented within a further period of 30 days. Thus, the Appellate Authority has no power to allow the appeal to be presented beyond the period of 30 days after the expiry of 60 days which is the normal period for preferring the appeal. It was further held that there is complete exclusion of Section 5 of the Limitation Act. 7. In Thirumalai Chemicals Ltd. (supra) it was held: "27. Right of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal ....
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....lication for condonation of delay such an appeal has to be considered by the Tribunal under the proviso to Sub-section (2) of Section 19 FEMA and if the Company shows sufficient cause for not filing the appeal in time then the Tribunal can condone the delay and entertain the appeal, especially when there is no accrued right to the Respondent to plead a time bar. The legal position is summarized thus by Justice G.P. Singh in Principles of Statutory Interpretation (12th Edition-Page 541) thus: "Statutes of Limitation are thus retrospective in so far as they apply to all legal proceedings brought after their operations for enforcing causes of action accrued earlier...." 48. Above discussion will clearly demonstrate that Section 49 of FEMA does not seek to withdraw or take away the vested right of appeal in cases where proceedings were initiated prior to repeal of FERA on 01.06.2000 or after. On a combined reading of Section 49 of FEMA and Section 6 of General Clauses Act, it is clear that the procedure prescribed by FEMA only would be applicable in respect of an appeal filed under FEMA though cause of action arose under FERA. In fact, the time limit prescribed under FERA was ....
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....hin the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. 28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of Processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the caus....
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....may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. 31. In Sangram Singh v. Election Tribunal, Kotah and Anr. : [1955]2SCR1, this Court highlighted 3 principles while interpreting any portion of the CPC. They are: (i) A code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. (ii) There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from ....