2006 (12) TMI 587 - HC - FEMA

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Legality of the appointment of the Adjudication Officer.
3. Interpretation of Sections 49(3), (4), and 5(a) of the Foreign Exchange Management Act, 1999.
4. Challenge to the financial condition assessment of the appellant.
5. Failure to file a reply before the Adjudicating Officer.

Condonation of Delay:
The appellant sought condonation of a two-day delay in filing the appeal, which was allowed by the court based on reasons presented in the application.

Legality of Adjudication Officer's Appointment:
The appellant challenged the legality of the appointment of the Adjudication Officer, contending it was illegal and void. The court examined the provisions of the Foreign Exchange Management Act, 1999, and the Foreign Exchange Regulation Act, 1973. The court noted that the appointment was made under the repealed Act, but as per the new Act, actions under the repealed Act are deemed to be under the new Act, thus upholding the legality of the appointment.

Interpretation of Sections 49(3), (4), and 5(a) of the Act:
The court analyzed Sections 49(3), (4), and 5(a) of the Foreign Exchange Management Act, 1999, which specify the transition from the repealed Act to the new Act. It was clarified that offenses under the repealed Act would continue to be governed by its provisions, and actions taken under the repealed Act are deemed to be under the new Act.

Financial Condition Assessment Challenge:
The appellant disputed the financial condition assessment made by the Single Judge, arguing it was perverse. However, the court upheld the Single Judge's findings, stating that the appellant failed to provide evidence of financial hardship to deposit the penalty amount, rendering the right of appeal illusory.

Failure to File Reply Before Adjudicating Officer:
The court agreed with the Single Judge's findings that the appellant failed to submit a reply before the Adjudicating Officer. Only a general submission was made, which the court found unreasonable, leading to the dismissal of the writ petition.

In conclusion, the court dismissed the appeal and the application for interim relief, upholding the findings and conclusions of the Single Judge on all issues raised by the appellant.