2014 (1) TMI 1964 - HC - FEMA

Delay in filing an appeal u/s 35 of the Foreign Exchange Management Act, 1999 (FEMA) - HELD THAT - As under the special law i.e., FEMA, a separate period for preferring an appeal and for condonation is provided u/s 35 of FEMA, which therefore, automatically excludes application of Sections 4 to 24 of the Act and, therefore, Section 5 of the Act is not applicable and the petitioner/appellant cannot seek condonation of delay of more than 60 days by virtue of the proviso u/s 35 of the Act. In the decision of the Supreme Court in Thirumalai Chemicals Limited's 2011 (4) TMI 489 - SUPREME COURT their lordships have already held that the procedure for filing an appeal being not a substantive right, but is a procedural right, amended provisions may impair such a procedural right and it cannot be said that Section 6 of the General Clauses Act, saves the right to file appeal within a specified period of limitation. The language of Section 35 shows the express intention of legislature to exclude Section 5 of the Act. It was, accordingly, held that the said section 5 of the Act was not applicable. Condonation filed by the petitioner cannot be sustained and the same is liable to be dismissed.

Summary

Issues:
1. Condonation of delay in filing an appeal under Section 35 of the Foreign Exchange Management Act, 1999 (FEMA).
2. Applicability of Section 5 of the Limitation Act, 1963 for seeking condonation of delay.
3. Interpretation of Section 49(3) of FEMA in relation to offences under the repealed Foreign Exchange Regulation Act, 1973 (FERA).
4. Exclusion of Section 5 of the Limitation Act, 1963 under FEMA for condonation of delay.

Analysis:

1. The appeal in question arose from two show cause notices issued under FERA, leading to adjudication orders and subsequent appeals under FEMA. The delay in filing the appeal under Section 35 of FEMA was explained due to procedural delays in receiving and processing the appellate tribunal's order.

2. The petitioner sought condonation of delay under Section 5 of the Limitation Act, 1963, while the respondent argued that the appeal was filed beyond the permissible period of 60 days as prescribed under Section 35 of FEMA. The respondent relied on various legal judgments to support their position.

3. Section 49(3) of FEMA was crucial in determining the transition period between FERA and FEMA. The provision allowed continuation of proceedings under FEMA for contraventions under FERA if initiated within two years of FEMA's commencement. The sunset period for such cases was until May 31, 2002, as per Supreme Court precedents.

4. The court analyzed the interplay between FEMA's specific provisions, such as Section 35, and the general provisions of the Limitation Act, 1963. It was established that FEMA's Section 35 provided a distinct framework for appeals, excluding the application of Section 5 of the Limitation Act for condonation of delay beyond the stipulated 60-day period.

5. Legal precedents, including decisions by the Supreme Court and various High Courts, supported the interpretation that FEMA's appeal provisions were self-contained, precluding the application of Section 5 of the Limitation Act. The court highlighted the importance of adhering to FEMA's prescribed timelines for filing appeals and seeking condonation of delay.

6. The court dismissed the application for condonation of delay, emphasizing the need to comply with FEMA's appeal timelines and the exclusion of Section 5 of the Limitation Act for seeking extensions. The judgment underscored the importance of procedural adherence in matters of appeal timelines under FEMA.

Conclusion:
The judgment focused on the strict adherence to FEMA's appeal timelines and the exclusion of general provisions like Section 5 of the Limitation Act for seeking condonation of delay. It highlighted the significance of following the specific procedural requirements under FEMA and upheld the dismissal of the condonation application due to the appeal being filed beyond the permissible period.