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Constitution & Appeal lie to the Appellate Tribunal [ Section 18 & 19 ] - FEMA Ready Reckoner - FEMAExtract Constitution Appeal lie to the Appellate Tribunal Section 18 provide constitution of Tribunal under FEMA Act Appellate Tribunal The Appellate Tribunal constituted under section 12(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under FEMA Act. Section 19 provides Order against which appeal lies to the Tribunal Section 19(1) provides Following person may prefer an appeal to the Appellate Tribunal the central government any person aggrieved by an order made by an Adjudicating Authority [ Other than order referred to Section 17(1) ] the Special Director (Appeals) Pre-Deposit condition [ First proviso of section 19 ] Any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government by the notification S.O. 537(E) , dated 01-06-2000. Tribunal power to dispense with condition of Pre-Deposit of Penalty [ Second proviso of Section 19 ] That where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person. The Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. Section 19(2) provide Time limit for appeal Every appeal under section 19(1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or the Special Director (Appeals) is received by the aggrieved person or by the Central Government and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed under the rule The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. Condonation for Delay:- the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. In exercise of the powers conferred, among order by section 19(2), the Rules relevant to appeal to the tribunal are Rules 10 to 14 of the said rules. the various procedural prescriptions in these Rules may be summarised as follows: Form of appeal and manner of filling Rule 10(1) provides that every appeal to the tribunal u/s 19 of the FEMA Act, 1999 shall be in form II and shall be sign by the appellant . It shall be sent in triplicate and accompanied by the following : Three copies of the order appealed against A fee of Rs. 10,000/- in cash or demand draft payable in favour of the Registrar, Appellate Tribunal for Foreign Exchange, New Delhi. applicant shall deposit the amount of penalty imposed by the Adjudicating Authority or the Special Director (Appeals) to such authority as may be notified under the first proviso to section 19 of the Act the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. Rule 10(2) provides that the appeal shall set forth concisely and under distinct heads the grounds of objection to the order appealed against without any argument of narrative and such grounds shall be numbered consecutively; and such appeal is also required to specify the following: the address for service at which notice or other processes may be served on the applicant, the date on which the order appealed against was served on the applicant; and the sum imposed by way of penalty under section 13 and the amount of fee prescribed in rule 10(1) had been deposited or not. Rule 10(3) in case of delay in filling the appeal beyond the period of 45 days referred to section 19(2), it shall be accompanied by a petition, in triplicate, duly verified and supported by the documents, if any, relied upon by the applicant, showing cause how the applicant had been prevented from preferring the appeal within the said period of 45 days. Rule 10(4) provides that Any notice required to be served on the applicant shall be served on him in the manner prescribed in rule 14 at the address for service specified in the appeal. Rule 11 Procedure before Appellate Tribunal (1) On receipt of an appeal under rule 10, the Appellate Tribunal shall send a copy of the appeal, together with a copy of the order appealed against, to the Director of Enforcement. (2) The Appellate Tribunal shall, then, issue notices to the applicant and the Director of Enforcement fixing a date for hearing of the appeal. (3) On the date fixed for hearing of the appeal, or any other day to which the hearing of the appeal may be adjourned, the applicant as well as the presenting officer of the Directorate of Enforcement shall be heard. (4) Where on the date fixed, or any other day to which the hearing of the appeal may be adjourned, the applicant or the presenting officer fail to appear when the appeal is called on for hearing, the Appellate Tribunal may decide the appeal on the merits of the case. Rule 12 Contents of the Order in appeal (1) The order of Appellate Tribunal shall be in writing and shall state briefly the grounds for the decision. (2) The order shall be signed by the Chairman or Member of the Appellate Tribunal hearing the appeal. Rule 13 :- Representation of party Any applicant who has filed an appeal before the Appellate Tribunal under section 19 of the Act may appoint a legal practitioner or a charted accountant to appear and plead and act on his behalf before the Special Director (Appeal) under the Act. Rule 14 :- Service of notices, requisitions or orders A notice, requisition or an order issued under these rules shall be served on any person in the following manner, that is to say, (a) by delivering or tendering the notice or requisition or order to that person or his duly authorised person, (b) by sending the notice or requisition or order to him by registered post with acknowledgement due to the address of his place of residence or his last known place or residence or the place where he carried on, or last carried on, business or personally works or last worked for gain, or (c) by affixing it on the outer door or some other conspicuous part of the premises in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain and that written report thereof should be witnesses by two persons; or (d) if the notice or requisition or order cannot be served under clause (a) or clause (b) or clause (c), by publishing in a leading newspaper (both in vernacular and in English) having vide circulation of area or jurisdiction in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain. Section 19(3) provides that the Tribunal s power in appellate proceeding On receipt of an appeal under section 19(1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. Section 19(4) provides that Persons entitled to copy of Tribunal s order The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Authority or the Special Director (Appeals), as the case may be. Section 19(5) provides that the time limit for disposal of appeal The appeal filed before the Appellate Tribunal under section 19(1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal. Appeal not disposed within 180 days: where any appeal could not be disposed of within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within the said period. Section 19(6) provides that Tribunal s revisionary power The Appellate Tribunal may, , on its own motion or otherwise, to call for the records for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding of such proceedings. On such examination of records, the tribunal may take such order in the case as it may think fit.
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