2014 (7) TMI 727 - HC - FEMA

Condonation of delay - delay of 179 days - it is submitted that, collective decision was required to be taken in the government departments at various levels, therefore, valuable time was consumed - Held that - under Section 35 of FEMA, appeal against the decision or order of the Appellate Tribunal would lie before the High Court provided the appeal is filed within a period of 60 days, extendable by a further period not exceeding 60 days if the High Court is satisfied that sufficient cause prevented the filing of the appeal within the prescribed period. To put it simply, any appeal filed before the High Court under Section 35 of FEMA beyond 120 days would be time barred. Interpreting similar provisions contained in the Central Excise Act, 1944, the Apex Court in the case of M/s. Singh Enterprises v CCE 2007 (12) TMI 11 - SUPREME COURT held that where the statute bars appeal beyond sixty days, the Court cannot condone the delay and entertain the appeal filed beyond sixty days. - application for condonation of delay dismissed - decided against the revenue.

Summary

Issues Involved:
Condonation of delay in filing the appeal under Section 54 of FERA, jurisdiction of filing the appeal under Section 35 of FEMA, interpretation of limitation period under Section 35 of FEMA, application of Section 5 of the Limitation Act, adequacy of explanation for delay, comparison of limitation provisions in different statutes, legal principles governing condonation of delay.

Analysis:

1. Condonation of Delay under Section 54 of FERA:
The appellant sought condonation of a 119-day delay in filing an appeal under Section 54 of FERA against an order of the Appellate Tribunal for Foreign Exchange. However, the respondents argued that the appeal should have been filed under Section 35 of FEMA due to the dissolution of the Appellate Board under FERA. The court referred to precedents and held that the appeal should have been filed under FEMA, and the limitation period under Section 35 of FEMA applied.

2. Jurisdiction and Limitation under Section 35 of FEMA:
The court emphasized that appeals to the High Court under Section 35 of FEMA must be filed within 60 days, extendable by a further 60 days if sufficient cause is shown. The court cited relevant case law to support the strict adherence to the limitation period and the inability to condone delays beyond the statutory limit.

3. Explanation for Delay and Application of Legal Principles:
The appellant provided reasons for the delay, citing the need for collective decision-making in government departments. However, the court found the explanation inadequate and unsatisfactory. It highlighted the importance of fulfilling the burden of showing that the delay was beyond the appellant's control and lacked negligence or lack of bona fide intentions.

4. Comparison of Limitation Provisions and Precedents:
The court compared the limitation provisions in FERA and FEMA, stressing that the procedural law applicable at the time of filing the appeal governs the limitation period. It also referenced previous judgments to establish the legal principles guiding the condonation of delay, emphasizing the need for an objective assessment of each case's facts and circumstances.

5. Dismissal of Appeal and Application:
Ultimately, the court dismissed the application for condonation of delay due to the significant delay of 119 days in filing the appeal beyond the statutory limit of 60 days. Consequently, the appeal itself was dismissed, adhering to the strict interpretation of the limitation period under Section 35 of FEMA.

In conclusion, the judgment delves into the intricacies of jurisdictional issues, statutory interpretation, and legal principles governing the condonation of delay in filing appeals under financial regulations. It underscores the importance of adhering to statutory timelines and providing satisfactory explanations for delays, ensuring a fair and consistent application of legal principles.