2023 (7) TMI 1475 - AT - FEMA

Delay in filing of the appeal against the impugned Adjudication Order - stipulated limitation for filing an appeal against an Adjudication Order in Both under the Foreign Exchange Regulation Act 1973 (FERA) under the Foreign Exchange Management Act 1999 (FEMA) - appeal has been filed after an inordinate delay of 14 years - The appellant pleaded in the Appeal that the said Demand Notice was received by him and for which he on 4-12-2018 conveyed to the respondent that the impugned order was never received by him, hence requested for a copy of the impugned order HELD THAT - Appellant has not disputed having received the Show Cause Notice and the Demand Notice at the same address at which the respondent claimed to have served the impugned Adjudication Order. The respondent has produced a copy of the postal Acknowledgment bearing signature with date, as proof of service of the impugned Adjudication Order on the appellant on 13-12-2004. The authenticity of the said Acknowledgment is not challenged by the appellant, however, he claims that the signature on the Acknowledgment is that of his late father, with whom he did not have amicable relations. The appellant has failed to corroborate his claim that he did not have amicable relation with his late father. Even if such claim by the appellant is accepted for argument sake, there is no explanation as to how and why the subsequent communication of the Demand Notice was received by the appellant. It is clear from the record that the Demand Notice dated 22-11-2018 was received by the appellant before 4-12-2018 when he sent letter to the Department and his father expired much later on 5-4-2021. It is also clear from the copy of the death certificate that the address of his late father remained the same till his death. In the reply to the Application it is not clarified as to the status of the relationship of the appellant with his father at the time when the Demand Notice was received by him. The claim made by the appellant that he did not receive the impugned Adjudication Order when it was first delivered on 13-12-2004 at his declared address cannot be accepted in the light of the previous and subsequent communications delivered to the appellant at the same address. These communications were also admittedly responded by him. The postal Acknowledgement of the receipt of the impugned Adjudication Order at the address of the appellant on 13-12-2004 bearing signature cannot be over-looked even if it was signed by the late father of the appellant as the appellant was aware of the proceedings of the Adjudication which were in progress and should have been diligent enough about its culmination. Civil Miscellaneous Application filed by the Respondent is allowed and the appeal is dismissed.

Summary

Issues:
1. Timeliness of filing an appeal against an Adjudication Order under FERA and FEMA.
2. Dispute regarding the delay in filing the appeal.
3. Proof of service of the Adjudication Order and the contention of delay.
4. Appellant's claim of not receiving the Adjudication Order and the respondent's evidence of service.
5. Appellant's explanation regarding the delay and relationship with the deceased father.
6. Arguments presented during the hearing regarding the appeal.
7. Analysis of the evidence, previous communications, and acknowledgment of service.
8. Application of legal precedent on condonation of delay.
9. Final decision on the appeal and the dismissal of the case.

Analysis:
The judgment addresses the timeliness of filing an appeal against an Adjudication Order under the Foreign Exchange Regulation Act 1973 (FERA) and the Foreign Exchange Management Act 1999 (FEMA). The appellant filed an appeal without an application for Condonation of Delay, leading to a dispute over the delay in filing the appeal against the impugned Adjudication Order dated 10-12-2004. The respondent produced evidence of service, including an acknowledgment from the Department of Post, indicating that the Adjudication Order was served on the appellant on 13-12-2004 at the provided address. The appellant claimed not to have received the order until 14-1-2019, citing a strained relationship with the deceased father, whose signature was on the acknowledgment.

During the hearings, the appellant argued for the appeal to be considered on merit, emphasizing that the appeal was filed within the limitation period. However, the respondent contended that the appellant did not file for Condonation of Delay and failed to demonstrate any change in address. The judgment analyzed the records, including the Show Cause Notice, Demand Notice, and the acknowledgment of service, concluding that the appellant had received previous communications at the same address where the Adjudication Order was served. The judgment highlighted the lack of explanation regarding the relationship with the deceased father at the time of receiving the Demand Notice.

The judgment referenced a legal precedent on condonation of delay, emphasizing the requirement for a sufficient cause to justify a delay in approaching the court. It noted that the appellant failed to establish the bona fides of the case and did not act diligently, leading to the dismissal of the appeal. Ultimately, the Civil Miscellaneous Application filed by the respondent was allowed, and the appeal was dismissed based on the evidence presented and the failure to meet the legal standards for condonation of delay.