2008 (5) TMI 760 - AT - FEMA

Issues Involved:
1. Application for review of dismissal order.
2. Financial inability to make pre-deposit.
3. Jurisdiction and power of the Tribunal under Foreign Exchange Regulation Act, 1973 (FERA).
4. Applicability of Foreign Exchange Management Act, 1999 (FEMA) provisions.
5. Legal principles regarding repeal and re-enactment of statutes.
6. Grounds for review of Tribunal orders.

Issue-wise Detailed Analysis:

1. Application for Review of Dismissal Order:
The appellants filed an application under section 28(2)(f) of FEMA, 1999, seeking recall of the dismissal order dated 11-12-2007 and rehearing of the application for dispensation of pre-deposit. The Tribunal dismissed the appeals for non-compliance with the pre-deposit order dated 8-3-2004, which was upheld by the Hon'ble High Court of Rajasthan. The Tribunal emphasized that the right to appeal, revision, or review is a creature of statute and cannot be claimed as a legal or fundamental right. The Tribunal does not possess the power to review its orders under FERA, 1973, except for correcting clerical errors under section 65 of FERA, 1973.

2. Financial Inability to Make Pre-deposit:
The appellants argued that they were suffering from total financial disability and were unable to make any pre-deposit of the penalty. The Tribunal referred to the Hon'ble Supreme Court judgment in Benara Valves Ltd. v. CCE, stating that mere assertion of undue hardship is insufficient and a factual scenario must be deeply considered. The Tribunal had previously allowed an 80% waiver of the pre-deposit but directed a 20% pre-deposit, which the appellants failed to comply with.

3. Jurisdiction and Power of the Tribunal under FERA, 1973:
The Tribunal highlighted that the proceedings were conducted under FERA, 1973, where the power of review is not available, except for correcting clerical errors. The Tribunal emphasized that the right to review is a substantive right and not a procedural one, and cannot be imported from FEMA, 1999, under which the Tribunal is constituted. The Tribunal referred to the judgment in Garikapati Veeraya v. N. Subbiah Choudhary to support this view.

4. Applicability of FEMA Provisions:
The Tribunal clarified that FERA, 1973, is a self-contained code with substantive and procedural provisions intertwined. The Tribunal rejected the argument that the procedure under FEMA, 1999, should be applied due to the repeal of FERA, 1973. The Tribunal cited section 49(4) of FEMA, 1999, which saves the provisions of the repealed Act, ensuring that all offences committed under FERA, 1973, shall be governed by it as if it had not been repealed.

5. Legal Principles Regarding Repeal and Re-enactment of Statutes:
The Tribunal cited several judgments, including Southern Petrochemical Industries v. Electricity Inspector and Gammon India Ltd. v. Spl. Chief Secretary, to emphasize that rights and liabilities under a repealed statute continue unless the new statute shows a clear intention to vary such rights. The Tribunal concluded that the appeals must be decided under FERA, 1973, as the adjudication order was passed under it.

6. Grounds for Review of Tribunal Orders:
The Tribunal outlined the well-settled grounds for review: (1) error apparent on the face of the record, (2) availability of fresh evidence not available earlier despite due diligence, and (3) similar grounds. The Tribunal found no error apparent on the face of the pre-deposit order dated 8-3-2004 or the dismissal order dated 11-12-2007. The Tribunal referred to the judgments in U.P.S.R.T.C. v. Imtiaz Hussain and Thungabhadra Industries Ltd. v. Government of Andhra Pradesh to support its decision.

Conclusion:
The Tribunal rejected the applications for review of the order dated 11-12-2007 and dismissed the appeals for non-compliance with the pre-deposit order dated 8-3-2004. The Tribunal emphasized that there is no equity in favor of the appellants who did not act bona fide and made no efforts to comply with the pre-deposit order.

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