TaxTMI 
TaxTMI 
2014 (4) TMI 612
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....s Standing Counsel. The detailed appeal was prepared and transmitted to the department for approval of the competent authority. After the final approval, the appeal was preferred in the High Court. Mr.Atul Nanda, Central Government Standing Counsel informed the appellant that the appeal was filed vide Diary No.183108/2010 and was lying under objection in the High Court Registry. Thereafter, Mr.Atul Nanda was designated Senior Counsel and the proposed appeal was returned to the Litigation Section vide letter dated 11.07.2011 for allotting to some other advocate. On 25.07.2011, Litigation Section (High Court) issued BT in favour of Mr.Sachin Datta. He took steps for refiling the appeal alongwith condonation of delay application. Correspondences were exchanged to ascertain the status of appeal. Vide letter dated 15.12.2011, Mr.Sachin Datta, Central Government Standing Counsel informed the department regarding return of the brief along with transmission form to the Litigation Section with the copies of the appeal, whereby he informed that the High Court Registry refused to accept refiling without proof of original date of filing by the previous counsel. The appellant department was lef....
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....aining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act. 15. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry and Ors. AIR 1957 SC 540, New India Insurance Company Limited v. Smt. Shanti Mishra (1975) 2 SCC 840, Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors. (1999) 8 SCC 16; Shyam Sundar and Ors. v. Ram Kumar and Anr. (2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature. 17. Right of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal un....
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.... entertain appeals filed after the expiry of 45 days if it is satisfied that there was sufficient cause for the delay in filing the appeal. Though both Section 52(2) of FERA and Section 19(2) of FEMA provide a limitation of 45 days and also give the discretion to the appellate authority to entertain an appeal after the expiry of 45 days, if the Appellant was prevented by sufficient cause from filing an appeal in time, the appellate authority under FERA could not condone the delay beyond 45 days whereas under FEMA, if the sufficient cause is made out, the delay can be condoned without any limit. The question we have already pointed out is whether Section 52(2) of FERA or Section 19(2) of FEMA will govern the appeal. As noticed above, any provision relating to limitation is always regarded as procedural and in the absence of any provision to the contrary, the law in force on the date of the institution of the appeal, irrespective of the date of accrual of the cause of action for the original order, will govern the period of limitation. 26. Section 52(2) can apply only to an appeal to the appellate Board and not to any appellate tribunal. Therefore, irrespective of the fact that th....
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.... jurisdiction to condone the delay beyond the date prescribed under FERA is not a correct understanding of the law on the subject." 7. In 'Union of India vs. Ashok J.Ramsinghani', 2011 (4) ALLMR 45, the Bombay High Court held : "16. We find it difficult to accept the above contentions. The legislature while repealing FERA and replacing it with FEMA has expressly dissolved the first appellate authority, namely the Appellate Board. Thus, on commencement of FEMA, the first appellate forum prescribed under FERA namely, the Appellate Board is expressly abolished. As a result, after commencement of FEMA, appeals against adjudication orders passed under FERA had to be filed before the appellate authorities under FEMA, namely Special Director (Appeals) / Appellate Tribunal, as the case may be. The legislature further provides under Section 49(5)(b) of FEMA that appeals pending before the Appellate Board on the date of commencement of FEMA shall be transferred to the Appellate Tribunal constituted under FEMA. Thus, on commencement of FEMA, appeal against the adjudication order passed under FERA would be maintainable before the appellate authorities constituted under FEMA within the pe....