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2015 (1) TMI 929 - SC - FEMACondonation of delay - whether for the purpose of counting delay in appeals against orders of adjudicating officer to the Appellate Board, the provisions of Foreign Exchange Regulation Act, 1973 or Foreign Exchange Management Act, 1999 shall apply - Held that - The impugned order was passed by the Adjudicating Authority on 11.08.2007. It is pleaded on behalf of the appellant and was not disputed by respondents that the said adjudication order was served on the appellant on 25.10.2007. - Therefore, we hold that even u/s 52 of FERA the Appellate Board was empowered to condone the delay, as the appeal was filed before 90 days and not later than 90 days - Following decision of Thirumalai Chemicals Ltd. v. Union of India and others 2011 (4) TMI 489 - SUPREME COURT OF INDIA - Decided in favour of appellant.
Issues Involved:
1. Whether the appeals before the Tribunal should be treated under the provisions of FERA or FEMA. 2. Whether the Tribunal has the power to condone the delay beyond the period of 90 days. Detailed Analysis: Issue 1: Applicability of FERA or FEMA The High Court framed the question of whether the appeals should be governed by the provisions of FERA or FEMA. Referring to sub Section (4) of Section 49 of FEMA, the High Court held that since the memorandum was issued within the sunset period and the adjudication proceedings were carried out under FERA, the substantive provisions of FERA would apply. The High Court stated, "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." Issue 2: Tribunal's Power to Condon Delay The Tribunal dismissed the appeal on the grounds that it was filed beyond the statutory period of 90 days, as per sub Section (2) of Section 52 of FERA. The Tribunal observed, "The Tribunal is a creature of statute. Therefore, this Tribunal cannot act beyond the statutory provisions. As a result the delay of exceeding period of 90 days cannot be condoned in view of legislative mandate couched in clear language." The Supreme Court referenced the case of Thirumalai Chemicals Ltd. v. Union of India, where it was held that the procedure prescribed by FEMA would be applicable for appeals, even if the cause of action arose under FERA. The Court noted, "Section 49 of FEMA does not seek to withdraw or take away the vested right of appeal in cases where proceedings were initiated prior to repeal of FERA on 1-6-2000 or after. On a combined reading of Section 49 of FEMA and Section 6 of the General Clauses Act, it is 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." Detailed Timeline and Calculation of Delay The Supreme Court provided a detailed calculation of the delay, noting that the adjudication order was served on the appellant on 25.10.2007, and the appeal was filed on 22.1.2008, totaling 89 days. The Court held that even under Section 52 of FERA, the Appellate Board was empowered to condone the delay as the appeal was filed within 90 days. Conclusion The Supreme Court concluded that the Tribunal and the High Court's decisions were not sustainable. The Court set aside the impugned judgment and remitted the case back to the Tribunal for a decision on the merits, stating, "For the reasons aforesaid, we have no other option but to set aside the impugned judgment dated 9th February, 2011 passed by the High Court and the order dated 24th March, 2008 passed by the Tribunal. The case is remitted back to the Tribunal to decide the same on merit." The appeals were allowed with no costs.
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