TaxTMI 
TaxTMI 
2014 (7) TMI 727
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.... under Section 54 of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "FERA") against the order dated 31.01.2011 passed by the learned Appellate Tribunal for Foreign Exchange in Appeal No.03/07, 6/07 and 34/07 filed by the respondents. The certified copy of the impugned order dated 31.01.2011 was received on 04.04.2011. The collective decision was required to be taken in the government departments at various levels, therefore, valuable time was consumed. As such, it was prayed that delay in filing the appeal be condoned. 2. The application has been contested by the respondents no.2 and 3, who have filed their separate replies. 3. Mr. Rajeev K. Virmani, learned senior counsel for respondent no.3 submitted that the present ....
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.... that since the appeal has to be filed under Section 35 of FEMA, the limitation prescribed under Section 35 of FEMA will apply. Reliance was placed on the law laid down by the Hon'ble Supreme Court in Thirumalai Chemicals Ltd. v Union of India (2011) 6 SCC 739, where it was observed: "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. Section 52(2) c....
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....reas Section 35 of FEMA of FEMA providing for appeals to the High Court provides for a limitation of 60 days, and puts an upper limit of 60 days up to which delay can be condoned. The present appeal admittedly has been filed after delay of 119 days which cannot be condoned. Reliance was placed on Union of India, through the Directorate of Enforcement (supra) wherein it was held as under: "As noted earlier Section 52 of FERA related to filing an appeal before Appellate Board. Admittedly, the Appellate Board stood dissolved on commencement of FEMA and, hence, there was no question of filing any appeal before the Appellate Board after the commencement of FEMA. Therefore, though the Respondent had stated that the appeal has been filed under Se....
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....h cannot be left to the personal whims of a person or to his convenience. Certain discipline is therefore, inherent in every concept of the law of limitation and this can offer no ground for grudge to any one, much less, the State. If State actions are weighted by cumbersome beurocratic procedures, the private individual also may suffer from paucity of hands and funds. If law expects a person to leave his business, cultivation or service alone in order to approach the Courts in time, why cannot the State, with its large work force and immense resources, cannot be expected to do so? All that is required is a properly coordinated action. If sufficient time-bound guidelines are laid down this work can be accomplished within time. The problem o....
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....l. There must be absence of negligence or inaction and also no lack of bona fide, should be attributable to it. (iv) Only on crossing these hurdles can an application for condonation succeed. However, each case deserves to be decided on its own facts and circumstances and no strait jacket formula can be prescribed. 9. Reliance was also placed on an order passed by the Coordinate Bench in Criminal Appeal No.1018 of 2008 Union of India v M/s ESS AAR Exports and others where in similar circumstances, the appeal was dismissed being time-barred. 10. Having concluded on what should be the approach in considering the application for condonation of delay, let us advert to the application in hand. 11. A perusal of the application moved by the ap....
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....ation 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." 14. Under Section 35 of FEMA, appeal against the decision or order of the Appellate Tribunal may be filed in 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. Proviso to Section 35 of FEMA makes it clear that the High Court if satisfied that the Appellant was prevented by sufficient cause from filing....