2003 (10) TMI 391 - HC - Companies Law

Summary

Issues:
1. Maintainability of an appeal under section 54 of the Foreign Exchange Regulation Act, 1973 against an order passed by the Appellate Tribunal.
2. Remedy available to the person aggrieved if the appeal is not maintainable.

Analysis:
1. The main issue in this case is whether an appeal is maintainable under section 54 of the Foreign Exchange Regulation Act, 1973 against an order passed by the Appellate Tribunal. The Respondent had filed an appeal before the Appellate Board under section 52 of FERA against an adjudication order. However, due to the enactment of the Foreign Exchange Management Act, 1999 (FEMA), the appeal was transferred to the Appellate Tribunal. The Appellate Tribunal, under FEMA, modified the order of the Directorate of Enforcement. The Registry raised an objection regarding the maintainability of the appeal under section 54 of FERA, which only allows appeals to the High Court on questions of law from decisions or orders of the Appellate Board. The matter was referred to the Bench to decide the appeal's maintainability.

2. The Appellate Board under FERA was abolished by FEMA, but section 49(4) of FEMA stated that all offenses committed under the repealed Act would continue to be governed by its provisions. Section 49(5)(b) of FEMA provided for the transfer of appeals pending before the Appellate Board to the Appellate Tribunal. The Appellate Tribunal, constituted under FEMA, passed the impugned order in this case. Section 35 of FEMA allows for appeals from the orders of the Appellate Tribunal to the High Court on questions of law. Therefore, the appeal in question is maintainable under section 35 of FEMA, even though the rights and liabilities are to be tested under the provisions of FERA existing at the time of the order. The decision on whether a question of law is involved in the appeal will be made when the appeal is considered for admission, provided the delay in filing the appeal is condoned.

3. In conclusion, the appeal is deemed maintainable under section 35 of FEMA against the order of the Appellate Tribunal. The Registry is directed to treat the appeal as filed under FEMA and to post the case before the appropriate Court for further proceedings.