2014 (12) TMI 1428 - AT - FEMA

Delay in Filing the Appeal - onus to prove sufficient cause of delay - inordinate delay of more than 11 years 10 months against the Adjudication Order - contraventions under the Foreign Exchange Regulation Act, 1973 - HELD THAT - If the provisions of FEMA, 1999 are applicable in the present appeal, then onus lies on the applicant/appellant to prove sufficient cause. But, the applicant/appellant has miserably failed to prove the sufficient, cause in filing the present appeal regarding delay because no plausible evidence was adduced by the applicant/appellant. The present appeal has been filed after inordinate delay of more than 11 years 10 months against the Adjudication Order, which period cannot be extended in any manner without establishing the sufficient cause. Hence, the application for condonation of delay is not maintainable as it be dismissed along with the present appeal. The applicant/appellant has/miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. There is no momentum of force in the submissions of Ld. Counsel for the applicant/appellants the judgments relied upon by the applicant are not applicable in the present case. There is modicum of merit in the submissions' of Ld. ALA for the respondent. Hence, the application for condonation of delay in filing the appeal as well as the appeal, arising out from the Adjudicating Order passed by the Special Director, Directorate of Enforcement, New Delhi is hereby dismissed

Issues Involved:

1. Condonation of delay in filing the appeal.
2. Receipt and acknowledgment of the Adjudication Order.
3. Sufficient cause for delay in filing the appeal.
4. Legal precedents and their applicability to the case.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:

The primary issue in this case was the condonation of delay in filing the appeal by the applicant/appellant. The appeal was filed after a delay of more than 11 years and 10 months from the date of the Adjudication Order dated 15.11.2000. The applicant/appellant argued that the Adjudication Order was received for the first time on 15.09.2012, and the appeal was filed within 45 days from this date. The applicant/appellant sought condonation of the delay, claiming that the delay was neither intentional nor deliberate but due to bona fide reasons. The Tribunal, however, emphasized that the onus lies on the applicant/appellant to prove sufficient cause for not filing the appeal within the stipulated period. The Tribunal referred to the legal position established by the Hon'ble Supreme Court, which states that delay caused by negligence is not condonable, and the applicant/appellant failed to provide acceptable and cogent reasons to justify the delay.

2. Receipt and Acknowledgment of the Adjudication Order:

The applicant/appellant contended that he was not aware of the Adjudication Order passed in 2000 as the copy was not served upon him. However, the respondent argued that the Show Cause Notice (SCN) was received by the applicant/appellant on 26.04.1999, as acknowledged in the office records, and the applicant/appellant was represented by advocates who filed vakalatnama on behalf of all noticees before the Adjudicating Authority. The Tribunal noted that the Adjudication Order mentioned the service of the SCN and the opportunities given for personal hearing, which the applicant/appellant did not avail. The Tribunal found that the applicant/appellant's claim of not receiving the order was not reliable or convincing.

3. Sufficient Cause for Delay in Filing the Appeal:

The Tribunal examined whether there was a sufficient cause for the delay in filing the appeal. The applicant/appellant failed to provide plausible evidence or a bona fide explanation for the delay. The Tribunal referenced the Supreme Court judgments, which emphasize that sufficient cause must be bona fide and not due to negligence. The Tribunal concluded that the applicant/appellant was thoroughly negligent in prosecuting the appeal, and there was no sufficient cause to condone the delay.

4. Legal Precedents and Their Applicability:

The applicant/appellant cited several judgments to support the condonation of delay. However, the Tribunal found that these judgments were not applicable to the present case. The Tribunal relied on Supreme Court judgments, such as Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai and Office of Chief Post Master General v. Living Media India Ltd., which highlight that delay caused by negligence is not condonable. The Tribunal observed that the applicant/appellant failed to demonstrate any exceptional circumstances or sufficient cause to justify the delay, and thus, the application for condonation of delay was dismissed.

In conclusion, the Tribunal dismissed the application for condonation of delay and the appeal, arising from the Adjudication Order dated 15.11.2000, due to the applicant/appellant's failure to provide sufficient cause for the inordinate delay in filing the appeal.

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