TaxTMI 
TaxTMI 
2015 (1) TMI 929
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....he factual matrix of the case is as follows: The State Bank of India, Okhla Industrial Area, New Delhi by its XOS statement dated 21.01.1995 disclosed that the appellant-M/s Opera House Exports Ltd., D-12/2, Okhla Industrial Area, Phase-II, New Delhi (hereinafter referred to as the, 'Company') did not realize substantial amount of its export bills and that the bills pending realization were for the period 1991 to 1994. Since it was found that there was a prima facie case of violation of Section 18(2) & 18 (3) of the FERA by the Company, the respondent initiated inquiries against the Company with regard to the export bills pending realization, reasons for pendency and steps taken for realizing the said bills. During the course of investigation, a directive u/s 33(2) of FERA was issued to the Company on 23.02.1996 in response to which the Company requested for time till 14.04.1996 for furnishing the requisite details. It was alleged that since no reply was furnished by the Company even by the said date summons was issued to the Directors of the Company on 16.05.1996, which also evoked no response from the Company. Summons was, therefore, issued to the Managing Director of th....
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....f the said export bills. Further, no correspondence was furnished for having taken any steps for obtaining extension from RBI for delay in realization of the proceeds. It was, therefore, found that the Company had contravened the provisions of Section 18(2) read with Central Government Notification Nos.F.I/67/EC/73-1&3, both dated 1.1.1974 and Section 18(3) of the FERA. Directors of the Company were found to have contravened the aforesaid provisions of the FERA. Memorandum No.T-4/32-D/2001 was, therefore, issued to the Company on 2.05.2001 for contravention of Section 18(2) read with Central Government Notification No.F.I/67/EC/73-1&3, both dated 1.01.1974 and Section 18(3) of the FERA. A number of Directors of the Company were charged for said contraventions of the FERA. The Company filed interim reply dated 2.06.2001 and submitted that it was one of the leading exporters of high fashion readymade garments and it had exported garments worth more than Rs. 235 crores during the last 8 years of business. The Company accepted that small amounts were pending realization in respect of exports made to various buyers. It was also submitted that the percentage of outstanding claims was n....
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....nts framed the following issues: "3. In the above facts, the questions of law which needs to be redressed are (a) whether the appeals before the Tribunal against the order of the adjudicating authority dated 11th October, 2007 had to be treated by the Tribunal under the provisions of FERA or FEMA? (b) whether Tribunal has power to condone the delay beyond the period of 90 days.?" Referring to sub Section (4) of Section 49 of FEMA, the High Court held: "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 takin....
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....tion 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 High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub- sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897 ) with regard to the effect of repeal." 10. Sub Section (1) of Section 49 of FEMA makes it clear that the Appellate Board constituted under FERA stood abolished w.e.f. 1.6.2000 i.e. the day FEMA came into force. Sub Section (3) of Section 49 of FEMA prohibits the Courts from taking cognizance of an offence under the repealed Act (FERA) and also prohibits the Adjudication Officer from taking notice of any contravention u/s 51 of the repealed Act (FERA) after the expiry of a period of 2 years from the date of the commencement of the Act. However, as per sub....
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....s clear that the procedure prescribed by FEMA only would be applicable in respect of an appeal filed under FEMA though the cause of action arose under FERA. In fact, the time-limit prescribed under FERA was taken away under the proviso to sub-section (2) of Section 19 and the Tribunal has been conferred with wide powers to condone delay if the appeal is not filed within forty-five days prescribed, provided sufficient cause is shown. Therefore, the findings rendered by the Tribunal as well as the High Court that the Tribunal does not have jurisdiction to condone the delay beyond the date prescribed under FERA is not a correct understanding of the law on the subject. 49. We, therefore, hold that the Appellate Tribunal can entertain the appeal after the prescribed period of 45 days if it is satisfied, that there was sufficient cause for not filing the appeal within the said period. We are therefore inclined to set aside the orders passed by the Tribunal and the High Court and remit the matter back to the Tribunal for fresh consideration in accordance with law on the basis of the findings recorded by us. We order accordingly." 13. In view of decision of this Court in Thirumalai Chemi....