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2014 (4) TMI 612 - HC - FEMA


Issues Involved:
1. Condonation of delay in filing the appeal.
2. Applicability of limitation period under FERA and FEMA.
3. Procedural vs. substantive rights in the context of appeals.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:

The appellant sought condonation for a delay of 804 days in filing the appeal. The appellant argued that the delay was due to various administrative processes and correspondences between different counsels and the department. The court noted that the appeal was filed after an inordinate delay and emphasized that Section 35 of FEMA permits an appeal to be filed within 60 days, extendable by another 60 days if sufficient cause is shown. The court found no sufficient cause for the delay and highlighted negligence and inaction on the part of the appellant, stating, "The delay has not been explained. The reasons given by the appellant in Annexure 'B' for delay in filing the appeal do not constitute sufficient cause."

2. Applicability of Limitation Period under FERA and FEMA:

The court examined whether the limitation period under FERA or FEMA applied to the appeal. It referenced the Supreme Court's decision in 'Thirumalai Chemicals Limited vs. Union of India (UOI) & ors.', which clarified that procedural laws, including limitation periods, are generally retrospective. The court stated, "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." This means that the limitation period under FEMA, which allows for condonation of delay without a ceiling if sufficient cause is shown, applied to the appeal.

3. Procedural vs. Substantive Rights in the Context of Appeals:

The court distinguished between substantive and procedural rights, citing the Supreme Court's observation that "Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right." The court emphasized that while the right to appeal is substantive, the limitation period for filing an appeal is procedural. The court concluded that the procedural law in force at the time of filing the appeal governs the limitation period, reiterating that "Section 19(2) of FEMA and not Section 52(2) of FERA will apply."

Conclusion:

The court dismissed the application for condonation of delay, finding no merit in the appellant's explanations and highlighting the negligence and inaction in pursuing the appeal. Consequently, the appeal and the pending application for stay were also dismissed. The court underscored that procedural laws regarding limitation are retrospective and apply to all legal proceedings brought after their operation, thus applying the limitation period under FEMA to the appeal.

 

 

 

 

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