TaxTMI 
TaxTMI 
2015 (9) TMI 338
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.... (hereinafter referred to as ?FERA?) against the final order dated 09.09.2009 of Appellate Tribunal for Foreign Exchange, New Delhi in Appeal Nos.1103/2004 and 1102/2004. The Appellate Tribunal allowed appeals of the respondents and quashed the adjudication order dated 04.05.2004. 2. At the outset, a preliminary objection was raised by the respondents with regard to maintainability of the appeal on the ground that it has been preferred beyond the period of limitation. Counsel pointed out that under Foreign Exchange Management Act (For short ?FEMA?), no appeal can be preferred beyond a period of 60 days of the date of communication of the decision or order of the Appellate Tribunal. The application for condonation of delay would also not be maintainable as proviso to Section 35 lays that although the High Court may on sufficient cause, allow to appeal be filed, but not exceeding 60 days. It is contended that in this case the appeal has been filed much beyond 120 days and, even otherwise, the application for condonation of delay does not disclose urgent and sufficient grounds. 3. Learned counsel for the appellant (Enforcement Directorate) urged that the Appellate Tribunal?s order d....
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....counsel were serious in filing the appeal as they took long time in preparing, checking and taking the approval of the competent authority. The objections were not removed in time and it remained pending for seven months. The inordinate delay of 832 days cannot be justified and does not constitute sufficient cause in terms of Section 5 of the Limitation Act. 5. Learned counsel for the appellant states that the provisions of FEMA are not applicable to the criminal appeal in hand as it was preferred under Section 54 of FERA. 6. I have considered the submission of the parties and have examined the record. Apparently, the present appeal has been filed after an inordinate delay of 832 days. Section 35 of FEMA permits the appeal to be filed within 60 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. The proviso authorises High Courts to extend the appeal to be filed within next 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal. Since the impugned order was passed by the Appellate Tribunal constituted under FEMA, in my view, the provisions of Secti....
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.... to Sub-section (2) of Section 19 conferring power on the Tribunal to condone delay in filing the appeal if sufficient cause is shown, are procedural rights.? 8. It further held : 19. Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but they are prospective in the sense that neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisi....
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.... with reference to the violation of the provisions of FERA, as the appeal against such order was to the appellate tribunal constituted under FEMA, necessarily Section 19(2) of FEMA alone will apply and it is not possible to import the provisions of Section 52(2) of FERA. As we are not concerned with the appeals to Appellate Board, but appeals to the Appellate Tribunal, limitation 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. 27. We have already indicated that Clause (b) of Sub-section (5) of Section 49 refers to appeal preferred and pending before the Appellate Board under FERA at the time of repeal. The said clause does not specifically refer to appeals preferred against adjudication orders....