2010 (3) TMI 499 - HC - Customs

Limitation- Appeal preferred along with notice of motion praying for condonation of delay of 154 days. Power of condonation of delay given to High Court circumstanced by outer limit of 60 days under section 35 while proviso to clause (c) of sub section (5) of section 49 not prescribed any outer limit for condonation of delay. Held that present appeal obviously under section 49(5)(c) sine Foreign Exchange Regulation Act already repealed. Petition filed on 09.01.2006 against order dated 02.12.2005. Petition withdrawn on 07.04.2006 and said period required to be excluded under section 14 of Limitation Act as remedy prosecuted in wrong forum. Delay remains of 66 days which even if section 35 of FEMA, 1999 applied needs to be condoned. Delay condoned.

Summary

Issues:
Appeal under Section 49(5)(c) of FEMA Act against Tribunal's order dated 2nd December, 2005. Condonation of delay in filing appeal. Applicability of Section 14 of Limitation Act, 1963. Interpretation of provisions under FERA and FEMA Acts. Comparison of Section 35 and Section 49(5)(c) of FEMA Act. Power of High Court to condone delay in filing appeal.

Analysis:
The appellant filed an appeal under Section 49(5)(c) of the FEMA Act against a Tribunal's order dated 2nd December, 2005. The appellant initially filed a writ petition in January 2006, which was withdrawn in April 2006, allowing the appellant to file an appeal with grounds for condonation of delay. The respondents did not oppose the notice of motion, but orally argued against the Court's power to condone the delay in filing the appeal.

The appellant argued that the right of appeal is a substantive right vested in a party when proceedings are initiated, allowing for the condonation of delay. The appellant relied on a judgment from the Madras High Court to support this argument. The respondent contended that the appeal should be under Section 35 of the FEMA Act, but even if so, the delay could be condoned under Section 14 of the Limitation Act, 1963.

The Court analyzed the provisions of FERA and FEMA Acts, noting that the FEMA Act repealed FERA. The Court highlighted that under Section 49(5)(c) of the FEMA Act, there is no outer limit prescribed for condonation of delay, unlike Section 35 which has a sixty-day limit. The Court disagreed with the respondent's argument and held that the appeal falls under Section 49(5)(c) of the FEMA Act, giving the Court the power to condone the delay.

Considering the timeline of events, the Court excluded the period of the writ petition from the calculation of the delay, leaving a remaining period of 66 days. The Court found that the delay was explained satisfactorily and thus should be condoned. Consequently, the notice of motion was made absolute, the delay was condoned, and the appeal was directed to be registered and placed for admission, with no order as to costs.