TaxTMI 
TaxTMI 
2015 (5) TMI 939
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....ssed by the Appellate Tribunal for Foreign Exchange (in short the Tribunal) dated 08.12.2014. The judgement of the Tribunal dated 08.12.2014, ruled on the prayer made by the petitioners in their respective appeals to waive the pre-deposit of penalty imposed by the Adjudicating Authority. The appeals preferred before Tribunal were numbered as: Appeal No. 219/2010, 220/2010, 221/2010 & 222/2010. 1.1 To be noted, the first appeal, i.e., Appeal No. 219/2010, was filed by the company, i.e., petitioner in WP(C) No. 1311/2015, while the remaining three appeals were filed by the three directors of the said company, i.e., Space Age Polymers Pvt. Ltd. (in short SAPPL). 1.2 The Adjudicating Authority, vide order dated 22.10.2010, has imposed penalty....
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....hat the present writ petitions are not maintainable, in view of the fact, that a statutory appeal to the concerned High Court is available to the petitioners herein under Section 35 of the FEMA. In support of his submissions the learned ASG relied upon the judgement of the Supreme Court in the case of Thirumalai Chemicals Limited vs Union of India & Ors., (2011) 6 SCC 739. 4.1 Mr Jain has gone on to say that that the writ court, should not, exercise its powers under Article 226 of the Constitution as a statutory remedy by way of an appeal under Section 35 of FEMA is available to the petitioners. He has buttressed his submission by seeking to place reliance on another judgement of the Supreme Court in the case of Raj Kumar Shivhare vs Assis....
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....the sun-set period. 6.1 The question, therefore, which arises for consideration is: whether the appeals were dealt with by the Appellate Tribunal (which is the new avatar of the Appellate Board) under FERA or FEMA. 7. Mr Jain, during the course of his argument, referred to me, the provisions of Section 49(5)(b) of the FEMA. It is Mr Jain's submission that the appeals were dealt with under the aforesaid provision, and thus, the disposal of the appeals was by the Appellate Tribunal under FEMA. 8. I must confess, to me, the language of Section 49(5)(b) of FEMA is suggestive of the fact that it is only an appeal, which was pending before the Appellate Board, and which could not be disposed of before the commencement of the Act (i.e., FEMA), ....
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....pellate Tribunal constituted under FEMA and not to the Appellate Board under FERA. Section 52 of FERA stipulates the limitation for an appeal against the orders of the adjudicating officer to the Appellate Board. It provides the period of limitation as 45 days but the Board may entertain an appeal after the expiry of 45 days but not beyond 90 days. Under FEMA, an appeal lies to the appellate tribunal constituted under that Act and Section 19(2) provides that every appeal shall be filed within 45 days from the date on which a copy of the order of the adjudicating authority is received. The appellate is however empowered to entertain appeals filed after the expiry of 45 days if it is satisfied that there was sufficient cause for the delay in ....
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....ion being a matter of procedure, only that law that is applicable at the time of filing the appeal, would apply. Therefore, Section 19(2) of FEMA and not Section 52(2) of FERA will apply. As noticed above, under Section 19(2), there is no ceiling in regard to the period of delay that could be condoned by the appellate tribunal. If sufficient cause is made out, delay beyond 45 days can also be condoned. The tribunal and the High Court misdirected themselves in assuming that the period of limitation was governed by Section 52(2) of FERA....." (emphasis is mine) 10. Having regard to the observations of the Supreme Court, this court cannot but decline the request of the petitioners to entertain the writ petitions. The Supreme Court in the cas....