2017 (12) TMI 396 - HC - FEMA

Revisional jurisdiction under the FERA - Notice of contravention of Section 51 of FERA was taken by the Adjudicating officer within two years from the date of the repeal of FERA - Held that - In the facts of the present case, the appellant is not without a remedy in the sense that a recourse can be taken to the remedies under the Constitution of India. The principle which governs Mimansa interpretation is that if a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether. Where there is a conflict between the object and material, the object is to prevail the material being subordinate to the object. Learned Counsel appearing for the appellant laid emphasis on the Mimansa principles by submitting that in absence of prescribed material, a substitute can be used. We fail to understand how Mimansa principles can advance the cause of the appellant any further. In the present case, we are dealing with the revisional jurisdiction. As in case of an appeal, a revision is always creation of a Statute. There is no inherent power vesting in any appellate authority or superior authority to exercise the power of revision. Moreover, the remedy of revision is never as matter of right. Mimansa principles will not revive a nonexisting remedy of revision. Therefore, we cannot accept the submission made by the learned Counsel appearing for the appellant based on Mimansa principles. Even if we apply Mimansa principles, it is impossible to accept the submission that a remedy of revision under the repealed Act was available to the appellant. Hence, we see no merit in the appeals. Appeals and Civil Applications are dismissed.

Issues Involved: Maintainability of revision applications filed by the Enforcement Directorate before the Appellate Tribunal for Foreign Exchange under the repealed Foreign Exchange Regulation Act (FERA) and the applicability of the Foreign Exchange Management Act (FEMA).

Issue-wise Detailed Analysis:

1. Maintainability of Revision Applications under FERA and FEMA:

The core issue revolves around whether the revision applications filed by the Enforcement Directorate under the repealed FERA are maintainable before the Appellate Tribunal constituted under FEMA. The respondents were charged with contraventions under FERA, but the Special Director of Enforcement dropped all charges. The appellant then filed a revision application under FEMA, which repealed FERA.

The Appellate Tribunal concluded that post-repeal of FERA, the revision application was not maintainable. The appellant argued that Sub-Section (3) of Section 49 of FEMA, which allows actions for violations of FERA within two years of its repeal, implicitly protects the remedy of revision under FERA. They also referenced Section 6 of the General Clauses Act, which preserves certain rights and remedies post-repeal.

The court noted that while Sub-Section (3) of Section 49 allows for certain actions under FERA within a two-year window post-repeal, it does not explicitly protect the right to file a revision application. The court emphasized the distinction between appellate and revisional jurisdictions, noting that revisional jurisdiction is supervisory and discretionary, unlike the right of appeal which is vested.

2. Interpretation of Section 49 of FEMA and Section 6 of the General Clauses Act:

The appellant highlighted Sub-Section (6) of Section 49 of FEMA, which states that the repeal does not prejudice the general application of Section 6 of the General Clauses Act. They argued that this provision should preserve the right to file a revision application. However, the court referenced the Supreme Court's decision in Shiv Shakti Coop. Housing Society v. Swaraj Developers, which clarified that Section 6 of the General Clauses Act does not apply to procedural rights like revisions, which are not substantive vested rights.

The court further referenced the Supreme Court's decision in Kolhapur Canesugar Works Ltd. v. Union of India, which held that if a statutory provision is repealed without a saving clause for pending proceedings, it indicates the legislature's intent to discontinue such proceedings.

3. Mimansa Principles of Interpretation:

The appellant invoked the Mimansa principles of interpretation, arguing that these principles should allow the revision application to be entertained to avoid leaving them without a remedy. The court, however, found that Mimansa principles could not revive a non-existent statutory remedy. The remedy of revision is statutory and cannot be implied or inferred where the statute does not provide for it.

Conclusion:

The court concluded that the revision applications filed by the appellant were not maintainable under FEMA. The court affirmed that the legislative intent was clear in not preserving the remedy of revision under the repealed FERA. The appeals and civil applications were dismissed, but the court noted that the appellant could seek remedies under the Constitution of India.

Summary:

The Bombay High Court addressed the maintainability of revision applications under the repealed FERA in the context of FEMA. The court held that the legislative framework did not preserve the right to file revision applications under FERA post-repeal. The court distinguished between appellate and revisional jurisdictions and noted that procedural rights like revisions are not vested rights protected by Section 6 of the General Clauses Act. The court also dismissed the appellant's reliance on Mimansa principles, affirming that statutory remedies cannot be implied where the statute does not provide for them. The appeals were dismissed, with the court suggesting that constitutional remedies remain available to the appellant.

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